July 9, 2018

Married or Common-Law: How Does It Affect Your Estate Plan?

Andrew P. Nicol Authored by: Andrew P. Nicol Posted in: Family Law, Real Estate

There are several misconceptions about the status of marriage and a common-law relationship in the estate planning context. In Nova Scotia, marriage and common-law relationships are treated differently for estate matters. Anytime key estate related legislation uses the term “spouse” it is exclusively referring to married spouses and does not include common-law spouses. Let’s look at a few estate related legislation in Nova Scotia, and discuss the differences.

Dying without a Will

If you do not have a valid Will when you die, the Intestate Succession Act applies to your estate. It divides your estate amongst family members, beginning with spouses and children, before moving to more distant relations should you not have a spouse or child (or they predeceased you). One of the family members who receives the most from an estate under the Intestate Succession Act is the spouse of the deceased.

However, a spouse only benefits if they were married to the deceased at the time of death. If the parties were in a common-law relationship (although it may have been long-term and “marriage-like,”) a common-law spouse receives nothing under the Intestate Succession Act. While there are many reasons you do not want to leave your estate to be divided according to the Intestate Succession Act, being in a common-law relationship makes it even more important to have a valid Will. Talk to your estate lawyer to review or set up your estate plan.

If you are a common-law spouse with someone who passed away without a valid Will, talk to an estate lawyer to see what options are open to you and how you can benefit from your deceased common-law spouse’s estate. There may be other avenues open to you that your estate lawyer can assist you with.

Claims against an Estate

The Testator’s Family Maintenance Act allows a “dependant” to file a claim against an estate if adequate provision was not made for him or her under the testator’s Will.  Spouses fall under the category of a “dependent” along with children. However, as you have probably guessed by now, only married spouses are included. Common-law spouses do not have the ability to file a claim against an estate under the Testator’s Family Maintenance Act, even if he or she was not provided for in their common-law spouse’s Will.

Similarly, the death of a spouse can trigger a division of matrimonial assets under the Matrimonial Property Act, but a common-law spouse is not a spouse for the purposes of the Matrimonial Property Act, only married spouses. 

Revoking Portions of your Will

As you can see, there are some key differences between a married spouse and a common-law spouse when it comes to estate planning. If you are in a common-law relationship or were the common-law spouse of someone who recently passed away, you may find it helpful to review with your estate lawyer to see how your marital status may be relevant regarding your estate plan or your involvement in an estate matter.

 

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