When Your Common-Law Spouse Dies

This script discusses what happens when your common-law relationship ends because of the death of your common-law spouse. Topics include:

• pension and survivor benefits
• inheritance rights of any children born to you and your spouse
• custody and guardianship of any children
• your rights if your spouse left a will
• what happens if your spouse did not leave a will

In law, a common-law relationship is like a marriage

In general, if two people live together in a common-law relationship, the law treats their relationship like a married relationship in many ways. But there are some differences, especially when it comes to limitation periods, and deadlines for making certain legal claims.

Being in a common-law relationship means that you and your partner qualify as “spouses” under a particular law. The provincial Family Law Act and many other provincial laws define a “spouse” as someone who is legally married as well as someone who has lived in a “marriage-like relationship” for at least two years. The Canada Pension Plan and many other federal laws define a spouse as someone who has lived in marriage-like relationship for at least one year. If your rights depend on a particular law, it is important that you know exactly how that law defines “spouse”.

What rights do you have to pension and survivor benefits?

You may be entitled to pension and survivor benefits when your spouse dies. Some pension plans recognize common-law spouse when it comes to paying out death benefits. Generally, you need to apply to the administrator of a pension plan to receive benefits.

Specifically, are you entitled to CPP benefits?

You can receive Canada Pension Plan benefits if you and your spouse lived together for a year or more before your spouse’s death. CPP provides three kinds of survivor benefits:

• a death benefit, which is a one-time payment
• a widow or widower’s pension, which is a monthly payment
• an orphan’s benefit, which is a monthly benefit paid to biological or adopted children

You have to apply for CPP survivor benefits. They will not come automatically. You can pick up an application kit from any Human Resources Canada Centre office and at many funeral homes, or you can apply online at www.servicecanada.gc.ca. Call the main federal government CPP office at 1.800.277.9914 if you need help.

What are the inheritance rights of a child born outside of marriage?

If a parent says in a will: “I leave all my estate to my children in equal shares”, that parent’s children share equally, whether or not they were born while the parent was married or not.

If your spouse’s will does not sufficiently take care of the needs of a child you had or adopted together, the child can apply to court to fix the problem. The Wills, Estates and Succession Act allows a biological or adopted child to apply to the court to change a deceased parent’s will, and the court may vary the will if it does not adequately provide for the child’s financial support. This does not apply to step-children.

If your spouse died without making a will, any children you had or adopted with your spouse are entitled to a share of the estate under the Wills, Estates and Succession Act. The amount depends on the size of the estate and whether your spouse left behind a married spouse or other children.

Incidentally, this leads to an important point. If you are the parent of a child born from a different relationship, or the step-parent of a child, you should have your own will prepared, to ensure all of your children would be looked after in the way you would like after your death.

What are your rights if your spouse left a will?

If your spouse left you a fair share of his or her estate in the will, you just have to go through the regular legal steps to inherit. To receive your inheritance, the will go through a procedure called “probate” if the value of the estate is more than $25,000 or contains an interest in real estate. Refer to script 178 on “Your Duties as Executor” to learn more about probating a will.

But if your spouse left you nothing or too little, you should talk to a lawyer right away. Under the Wills, Estates and Successions Act, a court can vary the will to provide something for a common-law spouse. To be eligible:

• you must have been living with your spouse at the time of his or her death,
• you must have been living with your spouse in a marriage-like relationship for at least two previous years from the date of death including relationships between persons of the same gender, and
• the court case must be started within 180 days of the grant of probate in British Columbia.

There’s another situation to consider. Let’s say your spouse made a will and looked after you and your children in it. But let us also say that your spouse had another spouse or children from another relationship, and did not leave them very much or anything at all. They too can go to court to have the will changed to better look after them.

For more information on getting a greater share of a deceased person’s estate, refer to script 179 on “The Disappointed Beneficiary”.

What are your rights if your spouse did not make a will?

In general, a common-law spouse has the same rights as a married spouse.

Let us say you lived with your spouse for at least two full years before he or she died. If he or she dies leaving you and surviving descendants, you would receive the household furnishings and a preferential share in the estate. If all the descendants of the deceased are also biological or adopted children of you and your spouse, your preferential share would consist of at least $300,000 from the estate. If, however, the descendants of the deceased are not related to you, your preferential share would only consist of at least $150,000 from the estate. In both cases, after the preferential share has been determined, you would receive one-half of the remainder of the estate, and your spouse’s biological and/or adopted children receive the other half. If the estate is less than the determined preferential share, the entire estate would be distributed to you. You should consult a lawyer if your common-law spouse has died, leaving children and no will.

The surviving spouse may acquire the spousal home to satisfy, in whole or in part, the surviving spouse’s interest in the estate.

Now, if you and your spouse lived separate or apart for at least two years, or one or both of you agreed to separate, or live apart permanently prior to the two year period before his or her death, you would not inherit the estate. But if you separated only a short time before, you may be able to apply for support from the estate, and you should consult a lawyer immediately.

Do you need to apply for custody and guardianship of your children?

That depends on the circumstances:

• If both biological parents are living together and no guardian has been designated when one of the parents dies, the surviving parent is the guardian of any children, whether you were married or not at the date of the death of the other parent.

• If the biological parents are separated, the parent with whom the child usually resides is the sole guardian of the child, unless the two of you have made a joint guardianship agreement, or a court has ordered joint guardianship.

For step-children, you will have to apply to the court for guardianship of them, even if they are already living with you, if your spouse did not make a will appointing you as guardian or if he or she was a joint guardian with the other biological parent. You should speak to a lawyer if you have any questions about this situation.

What is the effect of appointing a guardian in a will?

In a will, the guardian of a child can designate a person who will become the guardian of a child upon his or her death. However, if that designated guardian then dies, the child would become a ward of the province, because a guardian appointed under a will cannot designate another guardian through the guardian’s will. The Ministry of Child and Family Services would investigate the matter, and would not oppose a suitable person applying to the court for guardianship of a child. A lawyer should be consulted immediately if a guardian appointed under a will has died.

Where parents are joint guardians, and they each appoint someone else who is not necessarily the other parent to be the successor guardian in their wills. It is not clear if guardianship would go to the surviving parent or to the successor guardian named in the deceased parent’s will. If your deceased spouse shared joint guardianship with you, but named someone else to be the children’s guardian, you should speak with a lawyer.

Where can you get more information?

• Read the booklet entitled Living Together or Living Apart: Common-law Relationships, Marriage, Separation, and Divorce by the Legal Services Society, BC and available free on their website at www.legalaid.bc.ca. To find it, click “Our publications” then under “I want to find a publication by subject,” click “Families & children”.
• Also see the Legal Services Society’s Family Law in BC website at www.familylaw.lss.bc.ca — under “Your legal issue,” click “Common-law relationships”, click on “The basics”.

[updated January 2015]

The above was last reviewed for accuracy by Michael Warsh, Sylvia Lehmann and JP Boyd.

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