Marital Property Act New Brunswick: The 4-Month Deadline Surviving Spouses Must Not Miss

New Brunswick's Marital Property Act contains a deadline so consequential that missing it by even one day can mean losing the legal right to half the family home. This is not a technicality that estate lawyers can work around after the fact. The four-month window is statutory and absolute.

If you are a surviving spouse in New Brunswick — or the executor administering an estate with a surviving spouse — this deadline must be on your calendar from day one.

What the Marital Property Act Does

The Marital Property Act governs how married spouses share assets acquired during the marriage. At its core, the Act establishes that both spouses have equal shares in what is defined as "marital property" — assets accumulated during the marriage, including the matrimonial home, regardless of whose name appears on title.

When a spouse dies, the surviving spouse faces a fundamental legal choice: do they take what they receive under the will or intestacy, or do they assert their separate right to 50% of the marital property under the Act?

This election mechanism exists because what a will or the intestacy rules provide might be worth less than what the surviving spouse would receive by invoking their marital property rights directly. A will, for example, might leave the matrimonial home to the deceased's children from a prior relationship rather than to the surviving spouse. The Marital Property Act gives the surviving spouse a mechanism to override that.

The Four-Month Deadline

The surviving spouse has exactly four months from the date of death to make a formal election under the Marital Property Act.

This election must be made in writing and filed with the appropriate court. It is a formal legal document, not an informal statement to a family member or even a letter to the estate's lawyer. Once the deadline passes, the right to make a marital property election is permanently extinguished. No court can revive it. The surviving spouse's only entitlement then becomes whatever the will or intestacy rules provide.

The practical implications are severe. In a situation where a deceased spouse owned the family home in their name alone — common in older New Brunswick households — the surviving spouse could be left without a claim to the property if they fail to make the election in time. The home would pass according to the will (possibly to adult children) or through intestacy (divided between the spouse and children under the Devolution of Estates Act), rather than triggering the surviving spouse's 50% marital property right.

How the Marital Property Act Interacts With the Will

The relationship between the Marital Property Act election and the terms of a will requires careful analysis.

If the surviving spouse makes a marital property election, they are asserting their statutory right to 50% of the marital property. This takes priority over the distribution set out in the will. However, by making the election, the surviving spouse typically waives their right to receive the bequest left to them under the will. They cannot both claim their marital property share and also take what the will gives them — it is one or the other.

The decision is financial and requires comparing:

• What the will provides the surviving spouse
• What 50% of the net marital property is worth

The calculation is not always obvious. Marital property has a specific legal definition under the Act. Not all assets count — certain property brought into the marriage, gifts, and inheritances received during the marriage may be excluded. An estate lawyer or the executor with proper guidance must work through which assets qualify before the surviving spouse can make an informed election.

The Distinction from Intestacy Rights

If the deceased died without a will — intestate — the Devolution of Estates Act determines who inherits what. The intestacy share of a surviving spouse under New Brunswick law is:

• If there is one child: the surviving spouse receives all marital property plus one-half of the residue
• If there are two or more children: the surviving spouse receives all marital property plus one-third of the residue (children divide the remaining two-thirds)

Note that even under intestacy, the surviving spouse receives "all marital property" as a first step. But this intestacy entitlement is distinct from a formal marital property election under the Act. The election under the Marital Property Act triggers a legal proceeding that can override both a will's terms and the intestacy distribution in certain circumstances — which is why the four-month deadline matters even in intestate estates.

Common-Law Partners: Excluded Entirely

This is one of the most important distinctions in New Brunswick estate law. The Marital Property Act applies only to legally married spouses. Common-law partners — regardless of the length of the relationship — have no rights under this Act.

A common-law partner cannot make a marital property election. Their only legal avenue if their partner dies intestate is to file a claim under the Provision for Dependants Act within its own strict four-month deadline. That claim is not guaranteed to succeed and requires demonstrating financial dependency on the deceased.

New Brunswick's treatment of common-law partners differs sharply from provinces like British Columbia, Manitoba, and Nova Scotia, which have extended marital property rights to long-term common-law couples. In New Brunswick, the law remains narrowly restricted to legally married spouses.

What Executors Need to Do

If you are an executor administering a New Brunswick estate where a married spouse survives:

Immediately inform the surviving spouse of the four-month deadline. This is not optional. An executor who fails to ensure the surviving spouse knows about this deadline — and the surviving spouse consequently misses it — may face personal liability if the spouse can demonstrate they suffered financial harm as a result.

Do not distribute estate assets during the four-month period without understanding whether the surviving spouse intends to make a marital property election. Distributing marital property to other beneficiaries before the election period closes creates serious complications if the spouse later asserts their rights.

Retain an estate lawyer to advise on the election. This is one area where professional legal advice is genuinely necessary. The analysis of which assets constitute marital property under the Act, the calculation of each party's share, and the drafting of the formal election document require legal expertise.

Understand that the election and the will are not mutually exclusive in all cases. The surviving spouse may be entitled to take certain assets under the will in addition to a marital property claim, depending on how the will is structured. This requires careful review.

The Estate Administration Timeline

The Marital Property Act deadline of four months runs concurrently with other critical New Brunswick estate deadlines:

• Four months: Marital Property Act election window for surviving spouses
• Four months: Provision for Dependants Act claim deadline for financially dependent persons (including common-law partners)
• Six months or more: Typical timeline to receive CRA Clearance Certificate after filing Terminal T1 Return

This means the marital property election and dependants' support claim deadline often expire before the estate is even close to final distribution. Both decisions must be made while the estate is still in active administration.

If you are dealing with a New Brunswick estate where any of these issues are live, the executor's practical roadmap starts the moment of death — not when the probate application is filed.

Understanding the Full Settlement Process

The Marital Property Act election is one of the most consequential decisions in a New Brunswick estate, but it sits within a much larger administrative process. Executors must simultaneously handle federal benefit cancellations, bank account freezes, probate applications, creditor notices, and CRA tax filings — all while ensuring time-sensitive statutory deadlines are not missed.

The When Someone Dies in New Brunswick — Estate Settlement Guide provides a complete chronological roadmap with all deadlines clearly marked, including the Marital Property Act election window, the Provision for Dependants Act claim period, and the full probate and tax clearance process specific to New Brunswick law. It is written for executors and surviving family members who need to act quickly and accurately — not for lawyers who already know the rules.

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