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Mills & Mills LLP: Meghan O'Neil

Rights of a common law partner against the estate of his or her deceased partner

By Meghan O'Neil

Until Death Do Us Part 

Many people are under the assumption that being in a common-law relationship provides a couple with “essentially” the same legal rights as being married. Unfortunately for common-law couples, this is not the case, particularly when your common-law partner dies.

If your common-law partner dies without a Will, or without adequately providing for you in his or her Will, you do not have the same entitlements against your deceased partner’s estate as you would if you were married. You do have options, however, which include (a) a dependant’s relief claim or (b) a claim based on unjust enrichment.

Dependant’s Relief Claim

Pursuant to sections 57 and 58 of the Succession Law Reform Act (“SLRA”), if you have been cohabiting continuously for at least three years, or in a relationship of some permanence as demonstrated by having children together, you may be able to make a dependant’s relief claim against your common law partner’s estate. To do so, you must have been dependant on your common-law partner immediately prior to his or her death. The Court will assess an extensive list of factors to determine how much support you are entitled to from the estate of your deceased partner, and the duration of such support. Some of these factors include the following:

  1. your current assets and means, and those you will likely have in the future;
  2. your capacity to support yourself;
  3. your age and physical and mental health; and,
  4. the duration of your relationship with the deceased.

The full list of factors considered by the Court in assessing a dependant’s relief claim can be found in section 62(1) of the SLRA.

Unjust Enrichment

A common law partner may also make an unjust enrichment claim against the estate of his or her deceased partner. This type of claim would be available to you if the following three criteria are met:

  • you provided your deceased partner with an enrichment (benefit);
  • as a result of such benefit to your partner, you experienced a corresponding deprivation (loss); and,
  • there is no juristic reason for this.

For example, if you did all of the work around the house you shared with your partner and/or you were the primary caretaker of your children together (or his or her children), which gave your partner more time for his or her career, your partner would have benefited from this arrangement. You would have correspondingly experienced a loss, as the time you spent doing work on behalf of both of you around your house or with regard to your children would be time you could have otherwise spent making money in the work force. An absence of juristic reason means there was not a contract or other legal reason that explains and justifies this benefit to your partner and corresponding loss to you.

Conclusion 

The outcome of a dependent’s relief claim or an unjust enrichment claim are contingent on various factors specific to your circumstances. In contrast, a legally married spouse has a number of entitlements to the estate of his or her spouse which are clearly set out in both the SLRA and Family Law Act.

In part 2 of this blog I will outline such options. In the meantime, it is important to note that if you expect to be provided for by the estate of your common law partner, or want to ensure you adequately provide for your common law partner when you die, you or your common law partner must have a Will that stipulates this. If you need to make a Will or determine what claims may be available to you against the estate of your common-law partner, we would be happy to assist you.

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