Estates & Wills & Trusts

Dependant's relief an option for surviving common-law spouse

By Staff

Common-law spouses have options even if they’re left out of the wills of their deceased partners, Toronto trusts and estates lawyer Daniel Bernstein tells

Bernstein, a founding member with Weltman Bernstein, says Ontario law grants common-law spouses virtually none of the property rights that married spouses are entitled to when a person dies without a will.

“You could live together for 50 years, but unless you’re married, there’s no automatic right for your common-law spouse to get anything you own when you die,” he says.

Surviving married spouses can elect to take an equalization payment from the estate if they’re unhappy with their specified share. In addition, the province’s Succession Law Reform Act (SLRA) dictates that in cases of intestacy, married spouses are entitled to the first $200,000 in the estate, with the remainder divided between the spouse and any children of the deceased (in proportions depending on the number of children).

“However, there are other remedies available to non-married spouses,” says Bernstein, explaining that common-law spouses are able to make a claim for what’s known as “dependant’s relief” from the estate.

The claim is available as long as the applicant can show that they were a common-law spouse of the deceased and dependant on him or her at the time of their death, and that the will, if there was one, made “inadequate provision” for the applicant’s “proper support.”

A court will then make a determination of the amount and duration of the support, based on a number of factors laid out in s. 62 of the SLRA.

In one recent case, a judge awarded a woman the full proceeds of her common-law husband’s estate under the provisions, despite the fact they never married.

The judgment came despite the objections of the dead man’s sister, who was otherwise in line to inherit under the intestacy provisions of the SLRA.

“In this case, the judge exercised a great deal of discretion, but he clearly felt that if the money were to go to the man’s next of kin, there was not going to be enough left for his surviving common-law spouse,” says Bernstein, who was not involved and comments generally.

The couple in the case lived together for around 20 years before the man’s sudden death from cancer in 2015, just a month after diagnosis, according to the decision.

The woman, who is in her early 60s, earned less than $20,000 per year cleaning houses during the relationship, and the judge ruled she had little prospect of boosting her income due to her impending retirement.

When the man died, his common-law spouse became the sole owner of the house they bought in joint tenancy. Although valued at $300,000 it still had $150,000 left on the mortgage. The woman was also the beneficiary of his $80,000 life insurance policy but had already spent more than a third of it on living expenses by the time the matter arrived in court, the ruling states.

The deceased’s sister argued against the woman’s case for dependant's relief, claiming that she had already received around $200,000 of the $285,000 total value of the estate and could maintain her standard of living by getting a full-time job at minimum wage.

But the judge disagreed:

“It is not reasonable to expect the applicant to take an entry-level job at the age of 62 when she is already past the point of being able to sustain full-time physical labour, even light physical labour. Even if it were possible, it would only raise her earnings to the low $40,000 range, which would still not be enough to continue the modest standard to which she was accustomed,” he wrote.

With only her modest pension and no other realistic sources of support, the judge found that the woman’s intestate common-law spouse had not made adequate provision for her proper support.

“I think that a judicious spouse would have left her the entire estate, such as it is. The applicant is the only dependant and the only person with any moral claim on the estate. Accordingly, I order the trustee to convey to the applicant the entire residue of the estate after payment of taxes, debts of the estate and his own fees and I declare that the amounts already received or already in the applicant’s possession are hers to keep,” the judge concluded.

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