When Your Common-Law Spouse Dies (No. 150)

From Clicklaw Wikibooks

Learn your rights, and what you’re entitled to, if your common-law spouse dies. Learn what happens if your spouse left a will, if they didn’t, and if you had children.

Understand your legal rights

There are different definitions of “spouse” under different laws

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.

There are also different definitions of “spouse” under different laws. If your rights depend on a particular law, it is important to know exactly how that law defines “spouse”. 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 a marriage-like relationship for at least one year.

You may be entitled to pension and survivor benefits

You may be entitled to pension and survivor benefits when your spouse dies. Some pension plans recognize a 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.

You may be entitled to Canada Pension Plan 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. Canada Pension Plan 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 Canada Pension Plan survivor benefits. They will not come automatically. You can pick up an application kit from any Service Canada office and at many funeral homes, or you can apply online at servicecanada.gc.ca. Call the main federal government Canada Pension Plan office at 1-800-277-9914 if you need help.

If your spouse left a will

In the context of wills and estates, a spouse includes a person who you lived with for at least two years in a marriage-like relationship immediately before they died. You must have been living with them at the time of their death to be considered their spouse. A spouse can be someone of the same gender as you.

If your spouse left you a fair share of their estate in their will, you just have to go through the regular legal steps to inherit. To receive your inheritance, the will goes through a procedure called “probate” if the value of the estate is more than $25,000 or contains an interest in real estate. See our information on the duties of an executor (no. 178) 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 Succession Act, a court can vary the will to provide something for a common-law spouse. You must make the claim within 180 days of the grant of probate or grant of administration in British Columbia.

There’s another situation to consider. A person can have more than one spouse under the Wills, Estates and Succession Act. Let’s say your spouse made a will and looked after you and your children in it. But let’s also say 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 our information on challenging a will (no. 179).

If your spouse died without a will

You should consult a lawyer if your common-law spouse has died, leaving children and no will. If your spouse dies without a will and:

  • Your spouse left no descendants, their estate goes to you. A “descendant” means a surviving person of the nearest generation. This will almost always be children only. It can also include grandchildren.
  • Your spouse had descendants, then what goes to whom depends on whether the descendants are also your descendants. If your spouse had children — all of whom are also your children — you will get the first $300,000 of the estate and half of what’s left over. The other half will be divided equally among the children.
  • If any of your spouse’s children are not also your children, you get the first $150,000 of the estate. Then one half of what’s left over also goes to you. The other half is divided among your spouse’s descendants (usually their children).

You have the right to acquire the family home from the estate as part of your share.

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 their 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.

Our information on when someone dies without a will (no. 177) provides more detail on how an estate is distributed when there is no will.

If you had children with a common-law spouse

A parent is legally and morally obliged to provide for their child. Under the Wills, Estates and Succession Act, a child includes the deceased person’s biological and adopted children. Step-children are not considered to be children for these purposes.

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 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 challenge the will. The Wills, Estates and Succession Act allows a biological or adopted child to apply to the court to change a deceased parent’s will. The court may vary the will if it does not adequately provide for the child’s financial support.

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.

Tip

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. This way you can ensure all of your children would be looked after in the way you would like after your death. See our information on preparing a will and estate planning (no. 176).

If your spouse appointed a guardian in their will

In a will, a parent or guardian of a child can designate a person who will become the guardian of a child upon the death of the parent or guardian. However, if that designated guardian then dies, the child would become a ward of the province, because a guardian appointed under a will can’t designate a new guardian under their own 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.

In situations 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, the law 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.

Custody and guardianship of children you share with your common-law spouse

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 they were married or not at the date of the death of the other parent.

If the biological parents are separated, but had lived together in a marriage-like relationship while the mother was pregnant, and the parents lived together in a marriage-like relationship after the child was born, or if both parents cared for the child regularly, then both parents are guardians of the child. If one dies, the other will automatically become the guardian of the child.

If the biological parents are separated, and one of the parents has never regularly cared for or lived with the child after the child was born, then the parent who actually lived with and cared for the child is the child’s sole guardian.

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 they were a joint guardian with the other biological parent. You should speak to a lawyer if you have any questions about guardianship.

Get help

With more information

Legal Services Society, the legal aid provider in BC, publishes the booklet “Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce”.

Web: legalaid.bc.ca


[updated August 2017]

The above was last reviewed for legal accuracy by Thomas E. Wallwork, Thomas E. Wallwork Law Corporation.



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