In our modern society more and more people choose to remain in common law relationships rather than to marry. Certainly many think that few differences distinguish a common law relationship from a married one as society has responded to practical reality by making common law spouses eligible for pension benefits, family insurance benefits and spousal support. No wonder some people think it is all the same whether they are married or not. However, what many fail to realize is that it makes a very big difference with respect to property rights - both in life and after death.
A common law spouse of a deceased who has died intestate (without a Will) has no entitlement as a beneficiary of the deceased partner’s estate. It is not uncommon that a dedicated common law spouse of 20 or 30 years is faced with the prospect of the estate of their loved one, which they helped to build over the years, going to the blood relatives, who are the legal heirs according to legislation; and often being people who never had any social relationship with the deceased whatsoever.
If a person dies intestate, Part II of the Succession Law Reform Act governs who is entitled to their estate. In the Act, a spouse is defined as a married spouse only. Here is the order in which family of a deceased is entitled to take:
1. If there is spouse and no children the spouse takes all.
2. If there is a spouse and children, the spouse gets the first $200,000.00.
3. If there is one child, the residue goes to the spouse and the child equally.
4. If more than one child, the spouse gets one-third of the residue and the children share the other two-thirds equally.
5. If there is no spouse, the estate goes to the children equally.
6. If no children, the estate goes to the deceased’s parents equally.
7. If no parents, the estate goes to the deceased’s siblings; if a sibling pre-deceased, that sibling’s share goes to the deceased sibling’s children.
8. If no siblings, the estate goes to the nephews and nieces.
9. If no nephews and nieces it goes to the next of kin of equal degree of consanguinity - that’s where it gets complicated and complete strangers end up inheriting.
10. If no next of kin, the estate escheats to the crown.
Lesson? Make sure you have a Will!
Sharon Davis - Click here for more information on Sharon Davis.