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 Service 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 common-law spouse. Topics include:
- pension and survivor benefits
- inheritance rights of any children born to you and your spouse
- custody and guardianship of any children
- your rights if your spouse left a will
- what happens if your spouse didn’t leave a will
In law, a common-law relationship is like a marriage
In general, if two people live together in a common-law relationship, the law treats their relationship like a married relationship in many ways. But there are some differences, especially when it comes to limitation periods, the deadlines for making certain legal claims.
Being in a common-law relationship means that you and your partner qualify as “spouses” under a particular law. The provincial Family Relations Act and many other provincial laws define a “spouse” as someone who is legally married as well as someone who has lived in a “marriage-like relationship” for at least two years. The Canada Pension Plan and many other federal laws define a spouse as someone who has lived in marriage-like relationship for at least one year. If your rights depend on a particular law, it is important that you know exactly how that law defines “spouse”.
What rights do you have to pension and survivor benefits?
You may be entitled to pension and survivor benefits when your spouse dies. Some pension plans recognize common-law spouse 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 benefits if you and your spouse lived together for a year or more before your spouse’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 a 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 spouse’s will doesn’t sufficiently take care of the needs of a child you had or adopted together, the child can apply to court to fix the problem. The Wills Variation Act allows a biological or adopted child to apply to the court to change a deceased parent’s will, and the court may vary the will if it doesn’t adequately provide for the child’s financial support. This doesn’t apply to step-children.
If your spouse died without making a will, any children you had or adopted with your spouse are entitled to a share of the estate under the Estate Administration Act. The amount depends on the size of the estate and whether your spouse left behind a 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 will prepared, to ensure all of your children would be looked after in the way you’d like after your death.
What are your rights if your spouse left a will?
If your spouse 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 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 spouse left you nothing or too little, you should talk to a lawyer right away. Under the Wills Variation Act, a court can vary the will to provide something for a common-law spouse. To be eligible:
- you must have been living with your spouse at the time of his or her death,
- you must have been living with your spouse in a marriage-like relationship for at least the two previous years, and
- the court case must be started within six months of the grant of probate.
There’s another situation to consider. Let’s say your spouse made a will and looked after you and your children in it. But let’s also say that your spouse had another 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 better 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 spouse didn’t make a will?
In general, a common-law spouse has the same rights as a married spouse.
Let’s say you lived with your spouse 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 your spouse’s biological or adopted children. 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 spouse has died, leaving children and no will, and especially if a family home is owned.
Now, if you and your spouse 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 support 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 of the parents dies, the surviving parent is the guardian of any children, whether 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 spouse 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 about this situation.
What is the effect of appointing a guardian in a will?
In a will, the guardian of a child can designate a person who will become the guardian of a 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 the guardian’s 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 who isn’t necessarily the other parent to be the successor guardian in their wills. It’s not clear if guardianship would go to the surviving parent or to the successor guardian named in the deceased parent’s will. If your deceased spouse 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?
[updated March 2013]
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