Alberta's new Wills and Succession Act - part 4

As I mentioned in parts 1 through 3 of my posts about Alberta's new laws, the changes will be enormous. The change I'd like to tell you about today has to do with marriage, divorce, common law relationships and what they do to your will in Alberta.

[Note: in Alberta common-law relationships are called adult interdependent relationships. They can be either opposite-sex or same-sex, and the couples in these relationships are referred to as adult interdependent partners or AIPs.]

The old law (which is still in effect through 2011) says that any will you made before you were married is automatically revoked when you get married. The only exception was a case in which the will was specifically made in contemplation of a specific marriage and referred to the marriage in the will. It also said that if you got divorced, there was no effect on your will. All of this is changing.

Under the new law, your will is not going to be revoked just by getting married, no matter when your will was made. Your will is not going to be revoked just because you become an AIP.

The new provisions about what happens when a relationship ends are also radically different from what they were before. If your marriage or adult interdependent relationship ends, your will is still valid, but any gift to your ex-spouse or ex-AIP will be revoked, unless your will specifically says otherwise.

The gift that would have gone to the spouse/AIP will be treated as if the spouse/AIP had died. Most wills have - or should have - directions for paying out the estate if the spouse has already died, and those directions will be followed.

This rule applies no matter when the will in question was made, but only applies to divorces or termination of AIP relationships that happen once the new law comes into effect.

It would be a good idea to take out your current will and read it over with these changes in mind. Many clients will be making appointments to review their wills with their lawyers once the new law comes into force, and I strongly recommend that you do that as well.

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.