What Value? The Surviving Spouse’s Interest in the Estate Residence
Cohabitation Agreements and Marriage Contracts typically operate to ensure that spouses, be they common law or married, do not benefit in the estate of the survivor other than as provided for in a Will. For example, where a Will is not made, and if the parties are married, the domestic contract will need to provide that the surviving spouse is precluded from receiving the preferential share that would otherwise pass to him or her.
Despite the best intentions of the parties to such contracts, difficulties may nonetheless arise on the death of a spouse even where the surviving spouse has every intention of abiding by the agreement.
One such example of a common problem that may arise relates to the purchase or “buy-out” of the surviving spouse’s interest in real estate in which the estate has an equal interest. The problems that the parties may encounter include:
- at what date is the value of the property to be determined? The date of death or the date of the hearing which may be many months later
- Are adjustments to be made for any reason? and
- Should the purchase priced be adjusted to account for occupation rent and, if so, how is the occupation rent calculated?
In Psarros Estate v. Cook, Justice Akbarali of the Ontario Superior Court of Justice considered these questions and, on the facts of the case, concluded:
- It was an implied term of the Marriage Contract that appraisals be carried out “within a reasonable time of the decision to sell one party’s interest to the other.” As such, the fair market value was calculated as of November, 2013 rather than 2017;
- In this case there was insufficient evidence to consider adjustments; and
- Occupation rent, if any, is offset by the estate’s share of the expenses incurred by the surviving spouse and occupant.
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