Devolution of Estates Act New Brunswick: Who Inherits When There Is No Will

When someone dies in New Brunswick without a valid will, the province's Devolution of Estates Act takes over. The Act contains a rigid hierarchy of inheritance that may not reflect the deceased's actual wishes — and it contains a provision that surprises many families: common-law partners are entirely excluded from automatic inheritance.

Understanding how the Act distributes an estate is essential for any family navigating an intestate death in New Brunswick, and it is critical reading for common-law couples who have not yet drafted wills.

What "Intestate" Means

Intestate simply means dying without a legally valid will. A person may believe they have a will — they might have written something down years ago, or told family members about their intentions — but if the document does not meet New Brunswick's formal requirements (proper signatures, witnesses, absence of undue influence), the estate is treated as intestate.

When intestacy occurs, the Devolution of Estates Act replaces the deceased's preferences with a statutory formula. The courts have no discretion to deviate from this formula based on what the family believes the deceased would have wanted.

The Intestacy Distribution Formula

The Act distributes the estate of a New Brunswick resident who dies without a will according to the following hierarchy:

Married spouse only, no children: The surviving married spouse inherits the entire estate.

Married spouse and one child: The surviving married spouse receives all marital property plus one-half of the remaining estate (the residue). The child receives the other half.

Married spouse and two or more children: The surviving married spouse receives all marital property plus one-third of the residue. The children divide the remaining two-thirds equally.

Children only, no surviving spouse: The estate is divided equally among the surviving children.

No spouse, no children — ascending and collateral relatives: If the deceased had no spouse and no children (or grandchildren), the estate passes to surviving parents. If both parents are deceased, it passes to siblings, and if siblings have predeceased leaving children, to those children (nephews and nieces). The Act traces the family tree upward and outward in strict succession.

No surviving relatives: If no eligible relatives exist, the estate ultimately escheats — it passes to the provincial Crown of New Brunswick.

The Common-Law Partner Exclusion

This is the provision that causes the most financial devastation to unprepared New Brunswick families.

New Brunswick's Devolution of Estates Act defines "spouse" strictly as a legally married spouse. A common-law partner — even someone who has lived with the deceased for 20 years, raised children with them, and shared every financial asset — has zero automatic entitlement to inherit under the Act.

If the deceased died intestate, the common-law partner is not in the distribution hierarchy at all. The estate would pass first to the deceased's children, then to their parents, then to siblings — before any consideration of the surviving common-law partner.

This is not a theoretical risk. It means:

• A common-law partner can be legally evicted from the home they shared with the deceased, if the home was in the deceased's sole name
• All bank accounts, investments, and personal property held solely by the deceased pass to blood relatives under the Act
• The common-law partner's grief is compounded by the immediate threat of financial and housing insecurity

The only remedy is a claim under the *Provision for Dependants Act***, and this must be filed within **four months of the date of death. This is a separate legal proceeding, not automatic — it requires demonstrating financial dependency on the deceased. Success is not guaranteed, and the claim must be filed even if the common-law partner is clearly the most appropriate person to receive support.

New Brunswick's approach is notably more restrictive than other Canadian provinces. British Columbia, Manitoba, Nova Scotia, and several others have extended automatic inheritance rights to long-term common-law partners. New Brunswick has not.

Grandchildren and the Per Stirpes Rule

When a child of the deceased has predeceased them, the Devolution of Estates Act applies what is called the "per stirpes" rule. The deceased child's share passes to their own children (the deceased's grandchildren), who divide that share equally.

This prevents a branch of the family tree from being inadvertently cut out of the inheritance simply because a family member died before the person whose estate is being distributed.

For example: if the deceased had three children, but one child predeceased them leaving two grandchildren, the inheritance divides into thirds. The two living children receive one-third each. The two grandchildren split the remaining one-third between them.

Adopted and Illegitimate Children

Under New Brunswick law, adopted children are treated as legal children of the adoptive parents for all inheritance purposes. An adopted child inherits from their adoptive family's estate exactly as a biological child would.

Conversely, a child who has been legally adopted out of a biological family generally loses their inheritance rights to the biological parents' estate, subject to specific exceptions.

Children born outside of marriage — historically called illegitimate children — are treated equally to children born within marriage for intestate succession purposes. The Act makes no distinction.

The Practical Problem: No Probate, No Distribution

A family cannot simply look at the Devolution of Estates Act formula and start dividing assets informally. Distribution requires legal authority.

When there is no will, the eligible person (typically the surviving spouse or a child) must apply to the Probate Court of New Brunswick for Letters of Administration. This is the intestate equivalent of Letters Probate. Without Letters of Administration:

• Banks will not release funds held solely in the deceased's name
• The SNB Land Registry will not transfer real property
• The CRA does not formally recognize the administrator's authority

The Letters of Administration application requires filing Forms 2E or 2F with the Probate Court in the appropriate judicial district, along with an inventory of estate assets, the death certificate, and payment of probate tax calculated under the 2026 tiered structure.

The Letters of Administration application is more complex than a Letters Probate application. It typically requires sworn affidavits establishing the full family tree — proving there are no closer surviving relatives who might have priority — which is why many intestate estates benefit from legal assistance.

Probate Tax on Intestate Estates

The probate tax payable on an intestate estate follows the same 2026 tiered structure as testate estates:

• $200 base fee for estates valued at $20,000 or less
• $5 per $1,000 for the portion between $20,000 and $100,000
• $15 per $1,000 for the portion above $100,000

The court fees for Letters of Administration track identically to Letters Probate. There is no reduction in probate tax for dying without a will.

The gross value of the estate for probate purposes includes all solely-owned assets: bank accounts, investments, vehicles, personal property, and real estate (valued net of mortgages). Assets with named beneficiaries — RRSPs, TFSAs, life insurance — and assets held jointly with right of survivorship do not count toward the probate valuation.

What Families Should Do Now

If a family member is currently in common-law relationship and has not executed a will, this is an urgent matter — not a future planning concern. A properly drafted will can override the Devolution of Estates Act entirely and ensure the common-law partner inherits according to the couple's actual wishes.

If someone has already died intestate and a common-law partner was involved, the partner must contact an estate litigation lawyer immediately. The four-month claim window under the Provision for Dependants Act starts from the date of death. Waiting even one week to seek legal advice meaningfully reduces the time available to prepare and file the claim.

The Settlement Process After Intestacy

Dying without a will does not simplify the estate settlement process — it makes it more complex. The family must identify the appropriate administrator, apply for Letters of Administration, navigate the Devolution of Estates Act distribution formula, and manage all the same CRA filings, creditor notices, and agency notifications as any other estate.

The When Someone Dies in New Brunswick — Estate Settlement Guide covers the intestate process in full, including the Letters of Administration application, the specific forms required by the Probate Court of New Brunswick, and the Devolution of Estates Act distribution matrix. It also addresses the four-month dependants' support deadline, the rights and limitations of common-law partners, and the escalation point where legal counsel becomes unavoidable. Written specifically for New Brunswick — not as a generic Canadian template — it provides the jurisdiction-specific roadmap that families navigating an intestate estate actually need.

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