Best Estate Settlement Guide for Surviving Spouses in New Brunswick: The 4-Month Deadline That Cannot Be Missed

For surviving spouses in New Brunswick, the most important deadline in estate law is not the probate application — it is the 4-month Marital Property Act election. If you do not make this election within 4 months of the date of death, you permanently lose the right to claim your statutory 50% share of marital property. This deadline supersedes both the will and the intestacy rules, and it is fatal if missed.

A comprehensive NB-specific estate settlement guide is the best resource for surviving spouses because it covers both the immediate practical crisis — frozen bank accounts, the funeral, who to call — and the longer legal and financial process including this election, the house transfer using Form 41 and Form 48, executor duties if you are also named executor, and the CRA clearance requirements before your spouse's estate can be wound up.

The Critical Distinction: Your Rights as a Spouse vs. Your Duties as Executor

Many surviving spouses are also named executor in the will. This creates two simultaneous roles with different obligations and different deadlines. Getting confused between them is costly.

As a surviving spouse, you have rights:

• The right to make a Marital Property Act election (4-month deadline)
• The right to claim your share of joint assets, which bypass the estate entirely
• The right to inherit under the will, or under the Devolution of Estates Act if there is no will

As an executor, you have duties:

• The duty to administer the estate fairly — including to other beneficiaries, not just yourself
• The duty to notify creditors, file tax returns, and obtain a CRA Clearance Certificate before distributing assets
• The fiduciary duty not to favour yourself over other beneficiaries

A guide built for NB addresses both roles explicitly, because the conflict between your personal interests and your fiduciary duties is one of the most common sources of executor liability in surviving-spouse estates.

Who This Is For

This guide is the right resource for you if:

• Your spouse just died in New Brunswick and you need to understand your rights immediately
• You are the named executor and also the primary beneficiary, and you need to understand when these roles conflict
• You are not sure whether the matrimonial home transfers automatically, requires probate, or requires a specific form
• You need to understand what the Marital Property Act election means and whether making it benefits or hurts you compared to simply accepting what the will says
• Your spouse died without a will and you want to know how the Devolution of Estates Act distributes the estate
• You had a joint bank account and you need to know whether it is frozen or accessible

Who This Is NOT For

• Common-law partners: NB law makes a sharp distinction between legally married spouses and common-law partners. The Devolution of Estates Act gives common-law partners zero automatic inheritance rights. Your only remedy is a claim under the Provision for Dependants Act — filed within 4 months of death, before an estate solicitor, not a guide.
• Surviving spouses facing a contested will: If other beneficiaries are challenging the will, or if the will contains provisions that clearly disadvantage you, you need an estate litigation solicitor, not a guide. The Marital Property Act election particularly requires legal advice when the will's provisions are complex.
• Surviving spouses where the estate is insolvent: If your spouse left more debt than assets, the estate is insolvent and the priority rules governing debt payment require professional guidance.

The Marital Property Act Election: What It Is and Why It Matters

Under the New Brunswick Marital Property Act, when a married spouse dies, the surviving spouse has the right to make a formal election. This election allows you to choose between:

Option A: Accept what the will gives you (or what intestacy gives you if there is no will).

Option B: Claim your statutory share of marital property — typically 50% of all property acquired during the marriage. This right supersedes the will and cannot be reduced by testamentary gifts to other beneficiaries.

Why this matters: If your spouse left the bulk of the estate to children from a previous relationship, or if the will significantly undervalues your contribution to marital assets, the Marital Property Act election may give you substantially more than the will does. Conversely, if the will already leaves you everything, making the election may be unnecessary or even counterproductive.

The 4-month deadline is absolute. You must formally exercise this election within 4 months of the date of death. Missing it means permanent forfeiture — courts have no general discretion to extend this deadline.

What you need: A structured NB estate guide explains the election process and the documentation required, but the decision of whether to make the election versus accept the will is genuinely complex in many cases and may warrant a consultation with an estate solicitor before the 4-month window closes.

What Happens to the House

The fate of the matrimonial home depends on how it was held:

Joint Tenancy (Most Common for Spouses)

If you and your spouse owned the home as joint tenants with right of survivorship, the home transfers to you automatically upon death — bypassing the estate and probate entirely.

What you need to do: File Form 48 (Application of Survivor) with the SNB Land Registry. This removes your deceased spouse's name from the title. There is no probate tax on this transfer. The standard 0.5% NB provincial land transfer tax does not apply.

Important: Form 41 (Application for Registration of Transmission) must typically be registered first for the estate, followed by Form 48 to remove the deceased's interest. The sequence matters — submitting them in the wrong order causes rejection.

Tenancy in Common or Solely in Spouse's Name

If the home was held differently — as tenants in common, or solely in the deceased's name — the property is an estate asset. It does not pass automatically. The executor (who may be you) must obtain Letters Probate from the NB Probate Court before the SNB Land Registry will accept a Form 41 transfer.

Key fact: Even if you live in the home, you cannot legally transfer the title without Letters Probate and the Form 41 filing ($62 + $3 per parcel) if the home was in the deceased's sole name.

The Simultaneous Death Rule

Under NB's Survivorship Act, if two joint tenants die within 10 days of each other, they are legally deemed to have died simultaneously. This severs the joint tenancy into a tenancy in common — and the home does not automatically transfer to either estate's beneficiaries. Two separate Form 41s are required. This is one of the most surprising and disruptive outcomes in NB estate law for surviving families.

Accessing Money: What's Frozen and What Isn't

Joint accounts with right of survivorship: These are yours. Present the Long Form death certificate to the bank. The account transitions to sole ownership. This does not go through probate.

Sole accounts in your spouse's name: These are frozen. The bank requires Letters Probate before releasing funds. However, most NB banks allow payment of funeral expenses directly from a frozen sole account upon presentation of the funeral invoice, even before probate is granted.

RRSPs and RRIFs with you named as beneficiary: These pass directly to you, outside the estate. The financial institution will release funds upon presentation of the death certificate and your identification. These are not subject to probate tax.

Life insurance with you named as beneficiary: Same as above — directly to you, outside the estate.

The 2026 small estate bypass: If the total value of solely-held assets requiring probate authority is $25,000 or less, the Public Trustee may release them directly to the verified executor without a full probate application. This can significantly speed access to funds if the estate is small.

Timeline for Surviving Spouses

Intestacy: What If There Was No Will?

Under the Devolution of Estates Act intestacy rules:

• Spouse and one child: You receive all marital property plus half the residue of the estate. Your child receives the other half.
• Spouse and two or more children: You receive all marital property plus one-third of the residue. The children divide the remaining two-thirds equally.
• Spouse only (no children): You receive the entire estate.

Critical for common-law partners: These rules apply only to legally married spouses. If you were in a common-law relationship, you receive nothing under the Devolution of Estates Act. The 4-month Provision for Dependants Act claim is your only statutory remedy.

Executor Compensation — Do You Still Get It?

Yes. Even if you are the surviving spouse and primary beneficiary, you are still entitled to executor compensation if you do the work. Under the Trustees Act, the standard NB baseline is 3% of the gross estate value. This is taxable income — report it on your personal tax return in the year you receive it.

Most beneficiaries who are also executors choose to waive this fee in simple estates, because the estate passes to them anyway and taking it triggers unnecessary tax. In larger or more complex estates, claiming the fee makes financial sense.

FAQ

Does the house automatically go to me when my spouse dies in New Brunswick? It depends on how the title is registered. Joint tenancy with right of survivorship: yes, automatically, via Form 48. Tenancy in common or sole ownership in the deceased's name: no — you need probate and a Form 41 transfer.

What happens if I miss the 4-month Marital Property Act election deadline? You permanently lose the right to claim your statutory share of marital property. The will or intestacy rules apply instead. Courts in NB have no general power to extend this deadline for missed elections.

Can I access my spouse's bank account before probate? If the account is joint with right of survivorship, yes — present the death certificate. If the account is solely in your spouse's name, it is frozen until Letters Probate are issued, except that most banks will pay funeral expenses from a frozen account on presentation of the invoice.

I am both the executor and the surviving spouse. Can I distribute the estate to myself? Not before satisfying all debts and obtaining a CRA Clearance Certificate. You have a fiduciary duty to all beneficiaries — including any children or other beneficiaries named in the will. Distributing to yourself first creates personal liability.

Is the matrimonial home subject to NB probate tax? If the home is jointly held with right of survivorship, it bypasses the estate entirely — no probate tax. If it goes through the estate, its net value (purchase price minus any mortgage) counts toward the taxable estate for probate tax calculation purposes.

The When Someone Dies in New Brunswick — Estate Settlement Guide covers the Marital Property Act election, Form 41 and Form 48 filing sequence at the SNB Land Registry, the 2026 probate tax structure, and every deadline a surviving spouse needs to know — from the first 48 hours through final distribution.

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