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Wednesday, January 2, 2013

Can my deceased brother's common law wife claim more than the will gives her?

Here is another interesting note from a reader with a question that many of you will confront as executors or as beneficiaries. This one has to do with a common law spouse claiming a larger share of an estate. Here's the question:

"My brother passed away 2yrs ago. He left everything to two people, me and his common law. His money is split 50/50 between us both. I am received a letter that she is claiming dependant. She feels that because she has a disability that she should receive more. Can this happen and what is there for me to do?"

Yes it can happen, but only within certain guidelines.

In all provinces and territories in Canada, there are laws that allow certain people to claim a larger share of an estate if they believe the will (or intestacy provision) doesn't adequately provide for their needs. In all areas, these certain people include spouses, minor children and adult children who are handicapped. These are generally referred to as "dependent relief" laws.

I see that the spouse mentioned here is a common law spouse. Not all parts of Canada include common law spouses in the definition of "spouse" for inheritance purposes. So this spouse could legally be entitled to all kinds of things including child support, tax relief, pensions etc but still not be allowed to claim a larger portion of the estate. So that is the first thing you have to check on - whether your province allows common law spouses to have succession rights.

In the "interesting links" section of my blog, look for the link called "common law partner succession rights" and click on it. It goes to a table that basically says yes or no to the question of whether common laws are allowed to make this kind of claim.

The second thing that leaped out at me is the fact that your brother died two years ago. In every province and territory where claims of this type are allowed, there is a deadline by which the claimant has to file the lawsuit. It's usually 6 months. Note that this means 6 months from the time probate was granted, not 6 months from the date of death. It would be pretty odd for this will not to be sent to probate for two years after your brother's death. So that is the second thing to look into.

Assuming that your brother's common law spouse does fit the legal criteria of a dependent, and has made a claim within the allowed time, I would think that she would have a decent shot at success. I say this because you  mentioned she is handicapped, though it's never a guaranteed outcome. It's up to her to prove that the 50% she is supposed to receive is not enough. The court will also look at whether she received anything outside of the will, such as joint property, a life insurance policy or a pension.

You, as the other beneficiary of the will, would have notice of the court application and have a chance to read and examine her documentation before the court date. If you want to oppose her application, you can do so.

This isn't something you'd likely want to do without consulting a lawyer. Start by finding out the facts so you know where you stand.


  1. Hi Lynn! I am so glad I stumbled upon this blog, it's been very informative and taken about 2 hours of my day already because of all the fascinating possibilities.

    I was hoping you might provide me with some guidance on my truly unique, impossibly confusing, and terribly complicated estate situation.

    My Dad passed away suddenly last August due to complications from a routine biopsy on his lung. He did not have a will, as far as we know, and assumed my mother would simply inherit everything because they'd been common law for over 30 years, minus a period of about 10 months.

    I will try to keep this simple and short, as much as possible, because it's seriously a circumstance I feel like no one has ever encountered, one I believe there should even be reform in estate law over. (I'd also love to know who to contact to attempt that!)

    Okay, so my Dad married his first wife at age 18, had 2 kids within 2 years, and then divorced. Years later he met my mom, and the ex wife moved herself and the children to another province. He made child support payments regularly and saw them as often as possible.

    He was 26 years old when he began dating and living with my mom, who at the time was like 17. They spent 11 years together before having my older brother, myself, and my younger brother. They got married when I was 4 and divorced within the year. The separation period was very short lived as they moved back in together shortly after the divorce. (ODD I KNOW) Anyhow, they had my youngest brother about 6 years later, in 1998, after they'd lived common law that whole time.

    In fact, they lived common law from then until he died in 2015. Several decades, he claims both her and my brothers & I on his taxes as dependents, and we shared our family home which has been the same since 1995 when they reconciled.

    Fast forward to 2012, my dad asked my mom to remarry him. He wanted to finally give her the big wedding they didn't have the first time around, they had a justice of the peace the first time. He gave her a $12,000 engagement ring, the wedding band to match, and they fully intended to be married again after spending their whole lives together in common law.

    WELL, they never did get to remarry before he died due to the suddenness of it all, and he died interstate.

    Now, my oldest siblings, his first two children (Who are in their forties now and have disowned him for 10+ years) refuse to sign off on everything going to my mom as we all rightfully believe it should. They refuse to even appoint any of us admin, and cannot do it themselves (we were willing to allow that!) because they are located in BC & ON and we are all in NB.

    This has completely stalled the estate process, and my mother and my brothers and I (one still a minor..) have no idea how to move forward. They want her to sell the home they shared for 20+ years to divide between the 6 of us, not even including my mom.

    This woman devoted her entire life since 16, to my daddy, never worked outside of their home, and has no way to buy this home from the estate or relocate, and my youngest brother (17) still lives there with her.

    -Candace....continued below....

  2. To complicate things further, i've been in a verbal rent-to-own agreement with my dad for nearly 4 years at the time of his death, which we agreed that once my credit recovered, we'd consider my rent payments as a down payment so I could get the home my family and I reside in into my own name. I've paid $43,000 into this house and have nothing to show but a verbal agreement between my dad and I. My brother and his family live in his other rental, under similar circumstances, but for a much shorter period of time.

    ALSO---as he smothered to death in his hospital bed, he told my oldest brother, my uncle (his brother) and all of us including my mom what his final wishes were. He had no ability at that point to have it legalized in writing, but 5+ people witnessed and understood his wishes very clearly and compared later to verify they all got the same story. He specifically called my uncle to the hospital to verify that he would try to execute those wishes. Let me just say, they were NOT to sell everything and divide it by 6, excluding my mother, his ex-wife/fiance/common-law spouse of 30 years. On top of THAT, her lawyer she initially sought advice from was a freaking moron and didn't inform her that she had a cut-off on which to even apply for spousal support from the estate. It's been almost a year and she has no moves left to make to secure even a slightly stable future for herself. She also has been a homemaker and stay at home spouse her WHOLE LIFE since they met and "shacked up" as she calls it (haha) when she was just entering adulthood. My brother and I (and dad's 4 grandchildren) will also be forced to sell our homes and divide.

    He worked his life away, his job killed him at 61, before he could even retire. He worked that hard to build all of this, and his grown ass children from 40+ years ago are swooping in to legally knock it all down. It feels like this stupid law mess is making his sacrifice for our family worth nothing, if they dismantle the life he's built, he will have given his life to his job for NOTHING.

    Any suggestions on who I could speak to, or how we can proceed? Keeping in mind that they refuse to appoint an admin and don't even live in this province.


  3. I'm sorry in advance for the total freaking novel, I'll bet you ten bucks you've never heard such a mixed up collective disaster lol! :( <3

  4. One last thought, i'm sorry to bombard you, but this just came to mind as well. I know a marriage can be voided, but is it possible that a divorce could be voided? They were divorced in 1995 and lived common law ever since, even having another child together in 1998.(my youngest brother)


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