Married couples and Common law spouses
by David M. Israel
If a person is married, in most jurisdictions his or her
spouse has certain rights with respect to how that person’s
estate is distributed in the event of their death, regardless
of a will. These rights can be altered by a valid marriage
contract however, as a general rule, a spouse is entitled
to the same portion of the estate as they would have been
entitled to upon a separation or divorce. This is often one-half
of the estate but can vary depending upon which exemptions
under the Family Law Act may apply in a particular case.
This right will expire if not acted upon within certain time
limits (in Ontario, six month after death). Thus, even if
the will does not leave the other spouse anything from the
estate, the spouse has an automatic entitlement to a certain
share of the estate. This is an important aspect to consider
when deciding whether to claim the entitlement under the
will (or applicable intestacy legislation) or elect claiming
under the Family Law Act.
In cases of common law spousal
relations, the surviving common law partners do not have the
same rights with respect to a portion of the estate of a deceased
common law spouse. A common law spouse is only entitled to
benefits specifically stated in the will unless he or she can
prove an interest in certain property based upon other general
principles of property or trust law.
To contact the author, please email disrael@smhilaw.com
The information contained in this message is general
and should not substitute for the advice and counsel of
a licensed lawyer. |
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