Common Law Partners Rights upon Death

 

More and more Canadians are choosing common law partnerships rather than conventional marriage. Many assume that common law partners have the same legal rights as married couples, but in fact, the legal landscape is very different. In the event of a death, a common law spouse does not have the same rights as a married spouse if their partner dies without a will. A married wife or husband has the automatic right to receive the first $200,000 of the assets of the deceased, plus a percentage in proportion to the number of children. This is not the case for the unmarried spouse.

If a person passes away without leaving a will and they have no husband or wife by marriage (common law spouses don’t count), the assets automatically go to their children. If there are no children, then the assets go to the next of kin, such as parents and siblings. The only way for a common law spouse to receive a share of the estate would be to prove financial dependency on the deceased spouse. They can also prove they are worthy due to their contributions to the acquisition, preservation or maintenance of the asset (this is called a constructive trust claim) or by proving they had a “joint family venture” with the deceased. In this case, a share in the estate may be awarded at the discretion of the judge.

A judge’s order is difficult to obtain. Determining the rights in such a situation is significantly different between common law spouses and married spouses.

Though common law partners sometimes agree to name one another as the beneficiary in their wills, either party can change their will at any time without the other person’s consent or knowledge.

A cohabitation agreement is a good way to ensure rights and claims to an estate are secure, whether it is in a will or not. This would protect you upon separation and death.

If you do not have a cohabitation agreement, consider keeping track of receipts, as the division of property is based on ownership. If you retain the receipts to prove that you purchased the car or the piece of art, claiming that asset will be easier in the event of a separation or the death of your partner.


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