Common Law Spouses and Intestacy

Many common law spouses believe that because they have been living together, they are considered married in the eyes of the law and consequently, if one common law spouse dies intestate (without a Will), the surviving one common law spouse is entitled to receive part of or the entire Estate. This is not the case.

The Succession Law Reform Act (the “SLRA”) states that if one dies without a will, married spouses are entitled to a preferential share of the estate equal to $200,000 plus 1/2 of the balance to share with the deceased child or 1/3 of the balance to share with the deceased’s children.

However, common law relationships of heterosexual or same sex partners, lack the same recognition as married spouses under the SLRA leaving the surviving common law spouse with no statutory right to an inheritance from their spouse’s Estate.

That means if a common law spouse dies without a will, the surviving common law spouse has no entitlement to any part of the Estate.

For example consider Jack and Jill who have decided never to marry but have been living together for 15 years and have three children aged 12, 9 and 7. Unfortunately, Jack dies in a car accident leaving an estate valued at $300,000. Jack has no Will.

Because Jack and Jill were never married, Jill has no legal right to an inheritance or to property through an equalization payment and Jack’s estate will be divided equally among his three children where each would inherit $100,000 (held in trust until they have reached the age of majority).

As a common law spouse, Jill can only hope to succeed in an action where she would sue the Estate seeking support as a dependent.

The above example may seem unfair but the Supreme Court of Canada in Walsh v. Bona, held that such distinction does not offend the Canadian Charter of Rights and Freedoms because the differentiation was based on the individuals’ choice of whether or not to marry.

Common law spouses who want their spouse to have a right to an inheritance in their Estate must have a valid Will. If you or someone you know is in a common law relationship and does not have a Will, to avoid a situation such as this, it is time to consider getting one.

If you have questions regarding this issue or any other issue pertaining to Wills and Estates Planning, please contact:

Sébastien Desmarais
LL.B., LL.L., J.D.
Associate, Tierney Stauffer LLP

This article is provided  as an information resource and is not intended to replace advice from a quaified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter  referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. 

The Effects of Marriage, Separation and Divorce on your Will

We generally recommended that if you have a Will, you review it periodically to ensure that it remains relevant and continues to reflect your wishes. We also recommend that you consult with a lawyer if there has been a material change in circumstances since your will was executed. It is extremely important to follow this advice if you marry or if you separate or obtain a divorce from your spouse. These “material changes in circumstances” can have a significant impact on your Will and need to be reviewed with a lawyer.

If you Marry, Your Existing Will will be Revoked

Upon your marriage, any Will that was executed prior to your marriage is automatically revoked pursuant to the Succession Law Reform Act. There are 3 exceptions to this rule, the most important being if there is a declaration in the Will that it was made in contemplation of the marriage. If your will does not fit into any of the 3 exceptions, you will have to have a new Will executed after your marriage otherwise upon your death, you will be deemed to die intestate and your estate will be distributed in accordance with the intestacy provisions of the Succession Law Reform Act.

If you Separate, Your Existing Will will not be Affected

If you separate from your spouse, your Will will not be affected. It will remain valid and your estate will be distributed in accordance with its terms even if your former spouse is the beneficiary of your estate.

It is our experience that upon separation, most clients do not want to benefit their former spouse. As such, it is important for an individual who has separated to meet with his/her lawyer to review their will and determine if a new Will needs to be executed.

If you are Divorced, the Interpretation of Your Will will be Affected

If you obtain a divorce from your spouse, your Will remains valid, however, its interpretation will be affected by the terms of the Succession Law Reform Act.

Pursuant to the legislation, any gift to your former spouse or an appointment of your former spouse as executor or trustee will be revoked and your will shall be construed as if your former spouse had pre-deceased you.
As such, it is also important for an individual who has obtained a divorce to meet with his/her lawyer to review their Will and determine if a new will needs to be executed.

If you have any questions regarding any of these issues, we would invite you to contact us in order that we can set up a time to meet and discuss your questions.

David Sinclair
B.Com., B.A., LL.B.
Senior Associate, Tierney Stauffer LLP

This article is provided  as an information resource and is not intended to replace advice from a quaified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter  referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship.