鈥淲hat about common-law spouses?鈥�, is a question I posed at the end of last week鈥檚 column.
I had discussed the rights of stepchildren in estate matters.
Stepchildren are treated very differently from biological and adopted children.
Unlike biological or adopted children, stepchildren have no rights to an estate if their stepparent dies without a will. And they have no right to challenge a will that inadequately provides for them or disinherits them altogether.
So, what about common-law spouses?
Good news! Or bad depending on your perspective!
In estate matters, the law treats common-law spouses exactly the same as married spouses.
You don鈥檛 have to 鈥減ut a ring on it鈥�.
All of your common-law spouse鈥檚 assets are yours if they die without a will and without children.
If your common-law spouse has children, the division of the estate between you and the children is no different from if you were married.
And if your common-law spouse does have a will but they cut you out of it, you have the same rights as a married spouse when it comes to challenging the will.
Some people reading this might have felt a cold shiver run up their spine.
Before entering into a marriage relationship, it is common to consider how that significant life decision will impact on you financially, particularly if one of you has significantly more wealth than the other.
A prenuptial agreement might be entered into, clarifying the intentions of the spouses-to-be about entitlement to each other鈥檚 assets and spousal maintenance if the marriage doesn鈥檛 last. The upcoming wedding date provides a clear deadline for having important discussions that might lead to such an agreement.
Those discussions tend not to occur as we approach and then pass through the invisible line between dating and becoming common-law spouses.
That begs the question of where that line is drawn. What does it take to become a common-law spouse?
This can be confusing as all heck. One reason for confusion is that different laws have different definitions.
I am going to answer that question solely in the context of estates.
The Wills, Estates and Succession Act says that you are spouses if you 鈥溾�ad lived with each other in a marriage-like relationship for at least 2 years鈥�.
That begs the question: 鈥淲hat is a marriage-like relationship?鈥�
A Justice of the top court of British Columbia wrote in the recent decision of Coad v. Lariviere, 2022 BCCA 222: 鈥溾�here is no specific definition of whether a marriage-like relationship exists. The precise definitions of the past are no longer valid in our changing world. Such relationships are no longer defined by financial dependence, sexual relationships or the mingling of property and finances.鈥�
The very recent decision in Gorecki v. Byelyeychuk, 2024 BCSC 1589, decided less than two months ago, noted: 鈥淭he features of a marriage-like relationship vary widely from one to another. Features like shared finances, public displays of affection, sexual relations, sharing a bed, or vacationing together may or may not be important features in different types of relationships.鈥�
A list of factors that the court might consider was made by the trial judge in the Coad case:
- The parties鈥� intentions, particularly their expectation of whether the relationship would be lengthy and of indeterminate duration,
- Objective evidence of the parties鈥� lifestyle and interactions supporting a finding that their interactions 鈥渃losely resembled those typical of married couples鈥�,
- Whether the parties treat themselves as a family unit,
- Whether cohabitation was coupled with romantic and sexual relations,
- Evidence of emotional interdependence, mutual commitment, and attachment,
- Whether the parties co-mingled assets and shared expenses, and
- Whether the parties treated themselves as single or cohabiting for income tax purposes.
But it鈥檚 important to remember that the courts are not treating this issue as a checklist exercise.
And don鈥檛 make the mistake of thinking that you鈥檙e immune from becoming a common-law spouse because your partner is still married.
It is possible to have more than one spouse under estate law!
That very issue was squarely before the court in the interesting case of Boughton v. Widner Estate, 2021 BCSC 325.
At the time of Mr. Widner鈥檚 death he was married to Mrs. Widner and they had two children.
He had also been maintaining a long-term relationship with Ms. Boughton and had another two children with her.
Ms. Boughton knew about Mr. Widner鈥檚 wife but believed his classic promise that he planned to divorce his wife and marry her.
Mrs. Widner had no knowledge of her husband鈥檚 relationship with Ms. Boughton. Mr. Widner maintained two households, telling his wife that he had to be away regularly because of work.
Some others reading this might be feeling a cold shiver!
The punch line is that, indeed, you can have more than one spouse in the context of estates. The two spouses in that case split the estate.
If you like salacious novels, you might enjoy reading the case, which can be accessed here ().
I suspect that many questions might arise out of this column. Hit me with your e-mails and I will identify which ones I might answer in another colum
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul鈥檚 personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 陆 years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul鈥檚 intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
