When a long time partner dies without a Will

Our Estate Litigation team of lawyers appreciates that this can be very difficult for those individuals involved. We understand the sensitivity of these issues and have the expertise to mitigate and resolve conflicts through Mediation, Litigation or Arbitration. These are often complex, emotional situations, and we pride ourselves on balancing our clients’ legal and personal goals in seeking resolution.

Within our litigation team, a frequent question that arises is what happens if a long-time partner dies without a Will? Associate David Horvath explains the Wills, Estates & Succession Act.

Transcript:

One of the primary questions that we get in estate litigation is what happens when your long-term spouse dies without a will?

In those situations, the Wills, Estates & Succession Act is the governing body of legislation. That Act indicates what should be done in this type of situation, but the first question that's asked is whether or not you, as a surviving spouse, are a spouse as defined in the Act. The Act says a spouse is someone who has been married, that there was a wedding date. But if one is not married, a spouse is defined as two individuals living in a marriage-like relationship for at least two years. 

What a marriage-like relationship? Each relationship is different, but the Courts have come up with some indicia of what that means, and these are not exhaustive. All relationships are quite unique, but some examples of these can be blending of finances, situations where one partner takes on the financial burden of the relationship, situations where the couple has a child together, where they go on vacations together, where they act in public as a couple, their friends and family know them as a couple. These things help indicate to the Court that this was a marriage-like relationship. Therefore, if it was for at least two years, the surviving partner is a spouse under the Act. 

What happens at that point is determining who gets the estate? The estate includes any bank accounts, any money left over, property real or chattels, meaning personal belongings, less any debts, so any debts will have to be paid out. If you, being the spouse, are the only surviving member of the family and have no children, then all of that pot of money and assets would go to you. But if there are descendants it becomes a bit more complicated. If there is a child of the relationship, for instance, the surviving spouse is able to retain the household furnishings and gets a preferential share of the estate, which is $300,000. If the estate has less than $300,000, all of that money would go to the spouse. But in a situation where the descendant or child was not of the relationship, for instance, if you are a spouse and you are step-parent, then the spouse may get a preferential share of the estate in the amount of $150,000. Again if the estate, after debts are deducted, is less than $150,000, then all that money goes to the spouse. This is all dictated by this one Act. But when you have a Will, you get to decide who gets what. 

These types of situations are prime examples of why a Will is needed. Without one, things can get very complicated. If you have any litigation issues involving an estate or have questions about a Will or any issues discussed today, feel free to contact FH&P Lawyers.