A surviving spouse can start or continue a family property claim against the deceased spouse for family property rights. A deceased spouse's representative (e.g., executor or administrator) can only continue their family property application against the surviving spouse and cannot commence a claim. Family property claims in the estate context are not limited to divorcing or separating spouse; surviving spouses who were disinherited or left substantially less than they need or would be entitled to under The Family Property Act and The Dependants' Relief Act also have a right of action against the Estate. Deciding to advance either of these claims requires a consideration of the surviving spouse's entitlement from the Estate compared to The Family Property Act, and their needs going forward.
For a more detailed discussion on the foregoing, please see Paige's blog posts: Estate Litigation: Family Property Rights for the Living Spouse and Dependants' Relief Legislation: What to do when your inheritance from a deceased parent or spouse is inadequate to meet your needs?
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.