Rights to your home under the Dower Act

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This topic discusses your rights to your home under the Dower Act. These rights are given to you only if you are legally married. There are no rights before you marry or when you are divorced. You have Dower rights if you are presently separated from your spouse but not yet divorced. The Dower right is a married person’s rights to occupy the dwelling place (the “homestead”) or use household contents in that place which are owned in the name of their spouse. It does not apply to jointly owned assets.

A homestead is the home where you and your spouse lived during your marriage. If your home is in a rural area, your rights will extend to the use of the home and land up to 1/4 section. A homestead in the city cannot consist of more than 4 adjoining lots in 1 block. The average house in the city is usually not more than 4 adjoining lots and therefore usually qualifies as a homestead under the Act. You may have more than 1 residence that qualifies as a homestead. If that is the case, you will need to choose which property you will take a life estate interest. Your spouse may not dispose of either homestead without your consent unless you have indicated in writing which homestead you wish to live in.

Under the Dower Act, neither spouse may sell or mortgage the homestead without the other’s written consent. They cannot lease the home for more than 3 years without written consent. One spouse cannot leave their spouse homeless by leaving their home to someone else in their will without the written consent of the other spouse.

Any sale or re-financing (i.e. a new mortgage) made of the dwelling place owned by one spouse must have an acknowledgement signed stating that:

• The non-owner spouse is aware of the nature of the disposal,
• The non-owner spouse is aware that he or she has a life estate in the homestead and has the right to disagree with the transaction;
• The non-owner spouse consents to giving up his or her Dower rights; and,
• The non-owner spouse is signing the acknowledgement freely and voluntarily without being forced to do so by his or her spouse.

The acknowledgement form must be signed in front of a lawyer who is not associated with the other spouse. The spouse cannot be present at the time of your signing the acknowledgment.

If your spouse attempts to sell or mortgage the homestead and you have not signed an acknowledgement, you can challenge the sale in the Court of Queen’s Bench. Also, if your spouse attempts to lease the homestead for more than 3 years, you may challenge the arrangement. The Court can prevent or set aside the disposition if you satisfy the Court that you did not give your consent.

If your spouse disposes of the homestead without your consent, you may sue your spouse for 1/2 the value of the homestead or 1/2 of the sale price, whichever is greater. If your spouse has no money, you may be able to obtain money from an Assurance Fund controlled by the Provincial Treasurer. You should consult a lawyer if this has happened to you.

If you refuse to give your consent to the disposal of the homestead, your spouse may apply to the Court of Queen’s Bench for a Court Order eliminating the need for your consent. If your refusal is unreasonable or if you are not readily available to give your consent, the Court may allow the disposition of the homestead without your consent.

If your spouse was the only registered owner of your home and you are left a widow or widower, the Dower Act gives you a life estate in the homestead. You can live in or use the homestead for the rest of your life. However, you do not own it and you cannot sell it during your lifetime and keep the sale proceeds or give it to someone else after your death. If you move out of the homestead, you lose your Dower right.

Your rights under the Dower Act also include a life estate in some personal property of your deceased spouse. For example, furniture and household appliances to a maximum value of $4,000 one automobile to a maximum value of $5,000 or one motor truck, and the necessary tools, implements and equipment used in the practice of a trade or occupation to a maximum value of $10,000.

You have Dower rights to the home before and after the death of your spouse. The Dower Act protects this right by requiring your written consent to any disposal of your home. The Dower Act also provides protection to the spouse who is the legally registered owner of the homestead if you are the other spouse who unreasonably withholds consent to the disposition. Finally, the Dower Act allows you to sue your spouse if your Dower rights are lost as a result of a disposal of the homestead to which you did not consent.

Dial‑A‑Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.