Wills and common law spouses

May 21, 2015

Embarking on a first blog is daunting. How do I pick a topic that is interesting, useful and has wide application? Where shall I shine a light? What is the most common and serious piece of misinformation, or lack of information that I have come across? I don’t have to think too long to come up with two issues that crop up more often than they should, considering the consequences.

The first issue to shine a light on is that of common law rights on death. One of the facts most frequently greeted by misbelief concerns property rights on death  between common law partners. Common law spouses are recognized in many areas of life – taxes, pensions, support. This can easily lead to the assumption that cohabitation will be treated the same as legal marriage when a common law spouse dies. But, in my province of Ontario, and likely yours, family law legislation does not provide property rights to common law spouses, neither at the time of breakdown of the relationship, not on death. The effect is that a spouse in a common law relationship does not inherit property on the death of his or her spouse unless there is a will specifically gifting the property to that spouse. So, no matter how much the relationship looks like a “real” marriage, it won’t be recognized as such where estate assets. Even in the case of a couple living together in a common law relationship for twenty years with five children, our Family Law Act does not recognize the spouses as legally married and entitled to property rights. The children may inherit property where there is no will, but not the spouse. That’s why it’s extremely important for common law couples to have estate plans in place that include a valid will for each of them, naming their spouse as beneficiary of any property he or she should receive.

There is always the possibility that the spouse could make a claim against the estate assets on the basis of contribution to the property during the relationship. For example, the surviving party paid the down payment and all of the mortgage payments, renovations, etc. on the home owned by the deceased.  However, this would involve time consuming court action and legal costs.

The second issue for to shine a light on is the effect of marriage on an existing will.  It’s sad to see a couple who has been thoughtful enough in planning to complete the steps needed to have a valid will prepared and properly executed and then to have that will become void because of a subsequent marriage.  A will automatically becomes void on marriage. This situation is not unusual in the case of a common law couple that has made a will, as part of a joint estate plan, leaving assets to each other. They later decide to get go through the formalities of a legal marriage. The thought that this will affect their wills does not come up. And suddenly, they are without any will and would die intestate unless new wills are drawn up.

If this information helps one person to avoid a legal disaster, I’m happy.

Enjoy your day and come back soon.