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Thursday, January 14, 2010

Rights of adult interdependent partners surprise many people

An area of law that can be fuzzy for many Canadians is that of the rights of common law marriage partners. In Alberta, the equivalent of common law marriage is an adult interdependent relationship, and the people in those relationships are called adult interdependent partners (AIPs).

I don't practice family law and don't propose to talk about what legal rights or obligations AIPs have under family law. I would, however, like to talk about how AIPs are affected by estate law.

The law defines an adult interdependent relationship as a relationship of any two people (opposite sex or same sex) who:
  • are adults
  • are not legally married
  • share each other's lives
  • are emotionally committed to each other
  • function as an economic and domestic unit
  • have lived together for at least 3 years (or less if there is a child of the relationship)

This Act is unique to Alberta. When this Act came into force a few years ago, many other existing laws were changed to accommodate it. The effect was that rights that at one time were only in place for married people were now also applicable for AIPs. An area that was greatly affected by the changes was wills and estate law.

For example, whenever an individual makes a Will, he or she must, in the Will, look after his or her dependents. Those dependents are a spouse, minor children, and any adult children who can't earn a living because of a disability. A person who leaves dependents out of his or her Will takes the risk, and it's a substantial one, that the dependent will contest the Will to get a bigger share of the estate.

With the new law, AIPs took on similar rights to a married spouse. Now if you have an AIP, or as most people would say, a common law spouse, you must support that person in your Will. If you do not, the AIP can contest it. And if you don't leave a Will at all, and AIP is treated the same way as a legally married spouse would have been treated.

This law has some interesting twists. For example, it's possible to have both a legally married spouse and an AIP at the same time. If so, it is the AIP who inherits the estate on intestacy, not the legally married spouse. Here's an example: Joe and Mary get married. Later they separate but they don't get divorced. Joe moves in with his girlfriend, Sally. Three years later, Joe dies and he does not have a Will. According to the law, it's Sally who gets the spousal share of Joe's estate, not Mary. Even if Sally and Joe have broken up by then (as long as they lived together for three years before the break-up), Sally is still considered the "spouse" for estate law purposes.

It gets pretty complicated. The possibility of a dispute arising is pretty high, particularly if there are children of both relationships. If you are living in a common law relationship, your best protection is to talk to an estate planning lawyer to find out how the law applies to you and the people in your life, and to make a Will.


  1. What if Mary was a dependent adult and still relied entirely on Joe for support notwithstanding the new relationship?

  2. That would certainly complicate matters.

    Because Mary is legally still married to Joe, I believe that she would qualify as a person entitled to support under the Dependants' Relief Act. This means that she can make a claim through the courts for a part of the estate. Her claim would compete with anyone else claiming under the estate, such as Sally and any minor children Joe might have had.

    I'd also be curious as to the formal arrangement between Mary and Joe that requires Joe to pay maintenance. It could be an agreement or a court order. The details of the document might give some guidance as to whether Joe's obligation to pay support will survive him.

  3. Two people were in a commonlaw relationship for 20 years. Approximately 2 years ago the relationship was ending and one tried to kick the other out of the home. They continued to live in the same house to this day and were in litigation trying to resolve matters and I understand were close to settling. Unfortunately one died before anything was settled. There was a court hearing which took approximately 18 months to even get before a Judge and determination was made that they were in fact in an AIP relationship up till then. There were no children. The one who died had 1 sister who is still living and a niece. I am lead to believe that they didn't have much to do with the deceased person. They have now come out claiming they are the beneficiaries to the entire estate . There was no will. Does the AIP who is still surviving have any legal grounds to lay claim on any of the estate?

    1. Yes, an AIP has the same rights as a married spouse when it comes to inheritance. This means that the AIP automatically has a right to a preferential share of the estate, and possibly the whole estate depending on the financial circumstances.


  4. The matter is from Alberta.

  5. I wrote previously about the matter in Alberta. The AIP has no idea, has asked, but getting no answer as to what is going on with the estate. I understand the estranged sister is going after being appointed the administrator of the estate. The deceased person's lawyer has said this. The surviving AIP has counsel involved, but it appears is not getting any information. She fears that she will be kicked out of the family home that they two had shared since purchased as well as all household items. It was in his name only. As I previously mentioned, this was before the courts when he passed. She is on AISH, is disabled, on dialysis. What questions, legal forms should we be inquiring about. We, the family, are very concerned of her future. Thank you.

  6. One more thing to my previous email. I had her call a firm (I had researched on the web)who deal specifically with wills and estates law only to be told she couldn't afford them. Our concern is the inexperience of those involved. I have researched various Acts, cases, etc., and it is complicated in my opinion. There is just no information coming from any lawyers involved. Are there any questions that I need to be asking? Thank you.
    (The matter is in Alberta.)


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