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Sunday, November 27, 2011

Can I leave my house to my common law if he is married to someone else?

When estate law is applied to a complex family, the results are always interesting.  The following is a question recently sent to me by a blog reader in which family considerations are somewhat complicated:

My common-law husband and I have lived together for twenty years, in a house which is solely in my name, as is the mortgage on it. I want to make sure that when I die, my husband will be the sole beneficiary as stated in my will. Is that sufficient to ensure that he inherits the house as he is still legally married to his "ex" wife and I have brothers and sisters, all of whom live in other countries. I am guessing that as my common-law spouse and I have no children together, my siblings would be my legal next-of-kin.

There are a couple of smaller questions here that add up to your main question of whether you can leave your home to your common law husband in your will and feel confident that the will is going to stand up.

First of all, the fact that you have siblings will have nothing to do with it, in my opinion. Your siblings are not financially dependent on you and therefore don't have the automatic right to contest being left out of your will that, say, a minor child would have. And if they should attempt to contest your will on a moral ground, they would have to prove that it's more fair that they have your house than it is that the man you lived with in that house for twenty years should have it. Obviously I haven't been able to ask you for more details, but based on what you've told me, I don't find their relationship to you to be relevant.

Secondly, I don't believe that your common law husband being married to someone else will in any way interfere with your legal ability to leave him your house. Now if it were the other way around and he, while married, was trying to leave the family home to someone else, that might be a problem as his wife might have some rights to his estate. However from what you've told me, there isn't anyone else (like you having a legally married husband) who would have any say in whether you leave your house to your common law spouse.

Finally, if you have lived in a common law relationship for twenty years, you are required by law to support your common law spouse through your will. If you didn't leave him your full estate (including the house) then he might actually have a claim against your estate to try to receive the house. Check the rules about co-habitation and inheritance with a lawyer local to you.

A valid will leaving your home to your common law husband should be enough. Anyone who has any complications whatsoever in their family or estate  (as you have) should not be writing home-made wills. It's worth the money to have a competent lawyer draw up your will for you. Put some thought into who would be the best person to act as your executor.

Another way to leave a house to someone is to put their name on the title as a joint owner with right of survivorship. In your case, however, I wouldn't recommend it because of the possibility, no matter how slight, that your common law husband might divorce his wife and go through a matrimonial property division.

One more thing. Make sure you also have an enduring (a.k.a. continuing) power of attorney in place that clearly spells out your wish that the house not be sold during your lifetime unless absolutely necessary because you have plans for the house in your will. Have the power of attorney drawn up by the same lawyer who is doing your will. as the documents must work together.

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