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In several, but not all jurisdictions off reserves, the death of a spouse or common-law partner enables the surviving spouse or common-law partner to apply for his or her share of matrimonial property under provincial matrimonial property law rather than provincial wills and estates law.
The Indian Act sets out the provisions for inheriting real and personal property upon the death of an Indian who ordinarily resided on a reserve. However, there is no basic protection respecting the family home.
The proposed Act includes several provisions to ensure increased protections for surviving spouses and common-law partners with respect to matrimonial real property interests or rights on reserves.
The provisional federal rules of the proposed Act provide that a survivor can elect to receive an amount equal to half the value of the deceased's interest in or right to the family home and of other matrimonial interests or rights pursuant to this Act, as an alternative to inheriting from the deceased's will or under the estates provisions of the Indian Act. However, no election would be required with respect to the family home in cases where the deceased and the survivor held the family home in joint tenancy since the deceased's share would flow to the survivor directly, not through the estate.
The proposed Act also ensures that a surviving spouse or common-law partner who does not hold the interest in the family home will automatically have a right to occupy the family home for a minimum of 180 days following the death of their spouse or common-law partner. On application, the proposed Act will enable courts to provide to the surviving spouse or common-law partner, for a specified time, exclusive occupation as well as reasonable access to the family home. In coming to a decision, courts will have the opportunity to consider several factors, such as the interests of dependents, ties to the community and the medical condition of the surviving spouse or common-law partner.
First Nations would have the opportunity to make representations to the courts respecting their cultural, social and legal traditions before temporary occupation orders are made.