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Sunday, December 11, 2016

Woman who isn't named in lover's will can't get a penny from his estate, says PA court

This story is from Pennsylvania, but it could be from plenty of places including some parts of Canada. In this case, Ralph Tito died in 2013. He had been in a romantic relationship with Carol Galinac for about 13 years. Mr. Tito had adult children from a previous relationship. When he died, Mr. Tito left his estate to his children and left nothing to Ms. Galinac.

Ms. Galinac sued for a share of the estate based on her assertion that she and Mr. Tito were common law spouses. The judge denied her claim. Ms. Galinac appealed to a higher court and that was denied too.

Click here to read more about this case from www.pennlive.com.

The reason I want to talk about this case is that tens of thousands of common law couples in this country don't know what will happen if their partner should pass away. One of the reasons they're in the dark is that they make assumptions based on what they see on the news or anecdotes from friends. They assume that "common law is the same as married", It is not.

Sometimes when I tell common law couples that on the death of the partner he or she will inherit absolutely nothing unless there is a will, I get pushback. "But isn't it three months?" someone will ask me. Totally random number, as far as I can tell. "That's not true. I can get child support", another will say. Yes, but we're not talking about child support; we're talking about inheritance.

People in common law relationships need to understand one important thing. The fact that you are common law for child support purposes, or for tax purposes, or for the pension at work, does NOT mean that you will inherit anything from the estate in parts of Canada that do not recognize common law. They are separate legal issues. Don't assume anything!

Each province has different rules and regulations about who is a spouse for the purpose of inheriting and it's up to each individual person to find out from a lawyer (not a website, water cooler story at work, or coffee with your friends) the law in his or her province of residence. In Alberta, for example, you are considered a common law spouse if you live together for at least three years (and meet some other conditions) and if you fit that description you are entitled to inherit the same as a married spouse would. Here in my home province of Newfoundland and Labrador, it wouldn't matter if you lived together since Moses was a child; unless you are legally married you have no right to inherit your partner's assets in the absence of a will.

Frequently the response to a story like this is an automatic "that's not fair" by those who are in common law relationships. But isn't it? What if the person you're with thinks that you'd be okay without inheriting from him or her and believes his or her kids need the money more than you do? Doesn't a partner have a right to choose where his or her money goes? After all, there are plenty of things a common law spouse can choose to do to protect his or her spouse, such as marry the person, name them on a life insurance policy or RRSP, own assets jointly, or name them as a beneficiary under the will. I would assume if none of those things had happened after 13 years (in Mr. Tito's case), they were intentionally omitted.

Estate planning is important for all committed couples, but doubly so for those in common law relationships. Unless you want your estate held up in the courts and squandered on legal fees, talk to an estate planning lawyer.


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