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.