Updating your relationship status? Update your will while you’re at it if you want your estate to stay out of the courts.
Common-law spouses can often be left in a tricky position following the death of their partner – especially if they died without a will – since estates law offers no automatic entitlements to them. That’s a fact that comes as a surprise to many, including the Nova Scotia woman at the centre of a recent court decision.
According to the ruling, the woman had spent more than a decade as common-law spouse to the deceased before his death in 2020, only for his estranged wife to be named the executor of the estate – the pair had never divorced, despite separating in 2004.
The common-law partner subsequently made a claim against his estate, alleging it had been unjustly enriched by the sale of a Jeep and the retention of an interest in a back parcel on their property, each of which were solely in the name of the deceased.
The judge ultimately sided with the common-law spouse, finding that she had established a 50- per-cent ownership stake in both the Jeep and the back parcel by way of a constructive trust, thanks to mortgage, property tax and maintenance contributions made while her partner was alive.
In this case, the deceased had no will at all, but separation or divorce from a spouse should also be a trigger for testators to update an existing will, especially if they ever plan to start a new spousal relationship.
Common-law spouses who are inadequately provided for in a will are able to make a claim for dependant’s support, but this can be a long and potentially costly process.
In Ontario, recent changes to the Succession Law Reform Act would have made it more difficult for the wife of the deceased in this case to establish property rights over the estate.
Section 17 of the SLRA has long recognized that divorced testators would generally not want their former partners receiving gifts or serving as executor, by presumptively revoking those parts of the will and treating the ex-spouse as if they had predeceased the testator.
But the law was updated to ensure the same rules apply if the parties had separated prior to the testator’s death, but never quite got around to finalizing their divorce for whatever reason. At the same time, new provisions were also added to the SLRA preventing separated spouses from inheriting on an intestacy.
Of course, there are cases where amicably separated partners may want their ex to inherit even after a split, and the s. 17 revocations will not kick in if a will specifically states this preference.
Whatever your individual circumstances, it’s important to find an experienced professional who can ask the right questions about your spousal situation, and ensure that everyone who needs to be is accounted for.
Disclaimer: The content on this website is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this website are advised to seek specific legal advice by contacting members of Laredo Law (or their own legal counsel) regarding any specific legal issues.
