Script 150 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script discusses what happens when your common-law relationship ends because of the death of your partner. Topics include:

• pension and survivor benefits
• inheritance rights of any children born to you and your common-law partner
• custody and guardianship of any children
• your rights if your partner left a will 
• what happens if your partner didn’t leave a will

In law, a common-law relationship is like a marriage
In general, if a man and woman live together in a common-law relationship, the law treats the relationship like a marriage in many respects. But there are some differences, especially when it comes to limitation dates, which refer to deadlines for making a legal claim.

What rights do you have to pension and survivor benefits?
You may be entitled to pension and survivor benefits when your partner dies. Some pension plans recognize common-law relationships when it comes to paying out death benefits. Generally, you need to apply to the administrator of a pension plan to receive benefits.

Specifically, are you entitled to CPP benefits?
You can receive Canada Pension Plan or CPP benefits if you and your partner lived together for a year or more before your partner’s death. CPP provides three kinds of survivor benefits:

• a death benefit, which is a one-time payment 
• a widow or widower’s pension, which is a monthly payment 
• an orphan’s benefit, which is a monthly benefit paid to biological or adopted children

You have to apply for CPP survivor benefits. They will not come automatically. You can pick up an application kit from any Human Resources Canada Centre office and at many funeral homes, or you can apply online at www.hrsdc.gc.ca/en/isp/cpp/survivor.shtml. Call the main federal government CPP office at 1.800.277.9914 if you need help.

What are the inheritance rights of a child born outside of marriage?
The Law and Equity Act says that a person is the child of their biological parents, whether the parents were legally married or not. So if a parent says in his or her will: “I leave all my estate to my children in equal shares,” that parent’s children share equally, whether or not they were born while the parent was married or not.

If your partner’s will doesn’t sufficiently take care of the needs of your biological or adopted child with him or her, that child can apply to vary the will. The Wills Variation Act allows a biological or adopted child to apply to the court to change the deceased’s will. The court can vary the will if, in the court’s opinion, it doesn’t adequately provide for the child’s proper maintenance and support. This right doesn’t apply though to the deceased’s step-children.

Now, if your partner died without making a will, any of your natural or adopted children with him or her are entitled to a share of the estate under BC’s Estate Administration Act. The amount depends on the size of the estate and whether your partner left behind a legally married spouse or other children.

Incidentally, this leads to an important point. If you are the parent of a child born from a different relationship, or the step-parent of a child, you should have your own carefully drawn will, to ensure all of your children would be looked after in the way you’d like after your death.

What are your own rights if your partner left a will?
If your partner left you a fair share of his or her estate in the will, you just have to go through the regular legal steps to inherit. To receive your inheritance, the will must go through a procedure called “probate” if the value of the estate is more than $25,000 or contains an interest in real estate. Refer to script 178 on “Your Duties as Executor” to learn more about probating a will.

But if your partner left you nothing or too little, you should talk to a lawyer right away. Under the Wills Variation Act, a court can make the estate provide something for a common-law partner. To be eligible, you must have been living with your partner at the time of his or her death in a marriage-like relationship for at least two years. And the action must be started within six months of the grant of probate.

There’s another situation to consider. Let’s say your partner made a will and looked after you and your children in it. But let’s also say that your partner had a legal, but estranged, spouse or children from another relationship, and didn’t leave them very much or anything at all. They too can go to court to have the will changed to look after them.

For more information on getting a greater share of a deceased person’s estate, refer to script 179 on “The Disappointed Beneficiary.”

What are your rights if your partner didn’t make a will?
In general, a common-law partner has the same rights as a legal spouse.

Let’s say you lived with your partner for at least two full years before he or she died. You would receive the first $65,000 from the estate and share the remainder with any biological or adopted children of your partner. You would also be entitled to remain in the family home for so long as you wished, but you’d have certain obligations regarding the home. You should consult a lawyer if your common-law partner has died, leaving children and no will, and especially if a family home is owned.

Now, if you and your common-law partner separated before his or her death, you would not inherit the estate. But if you separated only a short time before, you may be able to apply for maintenance from the estate, and you should consult a lawyer immediately.

Do you need to apply for custody and guardianship of your children?
That depends on the circumstances:

• If both biological parents are living together and no guardian has been designated when one parent dies, the surviving parent is the guardian of any children, whether the two of you were married or not at the date of the death of the other parent. 
• If the biological parents are separated, the parent with whom the child usually resides is the sole guardian of the child, unless the two of you have made a joint guardianship agreement, or a court has ordered joint guardianship.
• For step-children, you’ll have to apply to the court for guardianship of them, even if they’re already living with you, if your partner didn’t make a will appointing you as guardian or if he or she was a joint guardian with the other biological parent. You should speak to a lawyer if you have any questions.

What is the effect of appointing a guardian in a will?
The guardian of a child can designate in their will a person who will become the guardian of the child upon his or her death. However, if that designated guardian then dies, the child would become a ward of the province, because a guardian appointed under a will cannot designate another guardian through their will. The Ministry of Child and Family Services would investigate the matter, and wouldn’t oppose a suitable person applying to the court for guardianship of a child. A lawyer should be consulted immediately if a guardian appointed under a will has died.

Where parents are joint guardians, and they each appoint someone else (i.e., not the other parent) to be the successor guardian in their wills, it’s not clear if guardianship would go to the surviving parent (i.e., the joint guardian) or the successor guardian named in the deceased parent’s will. So if your deceased partner shared joint guardianship with you, but named someone else to be the children’s guardian, you should speak with a lawyer.

Where can you get more information?

• Read the booklet entitled “Living Together, Living Apart – Common-Law Relationships, Marriage, Separation, and Divorce,” published by the Legal Services Society of BC. You can access it free online at www.lss.bc.ca. Click on “Our Publications” then search under the “Family Law” subject heading for the title.
  
• If you don’t have access to a computer, call the Law Line at (604) 408.2172 in Greater Vancouver, or 1.866.577.2525 toll-free outside the Lower Mainland, for a copy.

[updated February 2009]

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