Shacking up comes with serious consequences.
A clock starts ticking when two people in a relationship move in together.
I think that most folks are aware of family law consequences of living together for two or more years in a marriage-like relationship. You become 鈥渟pouses鈥�, the same as if you walked down the isle, with rights and obligations that come with that.
There are also consequences in the estate context.
The same definition of 鈥渟pouses鈥� is contained within the Wills, Estates and Succession Act.
Paraphrasing from section 60 of that Act, if you die leaving a will that fails to make adequate provision for the proper maintenance and support of your spouse, the court can redistribute your estate to accomplish what, in the court鈥檚 opinion, is adequate, just and equitable.
Do you think you鈥檝e got your ducks in a row because you had a cohabitation or prenuptial agreement put in place?
Maybe you鈥檙e right. But maybe not.
Many couples enter into a written agreement, agreeing that what you brought into the relationship is yours, what they brought into the relationship is theirs, and neither of you will sue the other鈥檚 estate.
Those agreements are not cheap, unless you pulled something off the internet in which case they might not be worth the paper they鈥檙e printed on.
However much you invested to ensure you can pass your wealth onto your kids instead of your new partner, those agreements are seldom 鈥渙ne and done鈥�.
An agreement that was fair when you first started living together will likely become unfair over time, the unfairness becoming greater and greater the longer you live together.
And provisions agreeing that you won鈥檛 sue the other鈥檚 estate are not enforceable.
A court considering whether you have made adequate provision for the proper maintenance and support of your spouse will not uphold an unfair cohabitation or prenuptial agreement.
There鈥檚 another, lesser known, piece of legislation that comes into play after the ticking clock reaches two years. It鈥檚 called the Land (Spouse Protection) Act.
Let鈥檚 say you鈥檙e the sole owner of your house. Your romantic partner moves in with you. They don鈥檛 contribute a cent to repairs, maintenance, property taxes or any other expenses related to the home.
After two years of living in that home, they automatically become your 鈥渟pouse鈥� under that Act, entitling them to register a charge against title.
They don鈥檛 have to tell you about it and you won鈥檛 be notified.
If you die before they do, they will be entitled to continue living in your home for the rest of their life, regardless of what your will says.
It鈥檚 easy to register the charge against title. There is a simple form of Affidavit in the regulations where they must swear that you are spouses, and that you are the sole registered owner of a property where the two of you reside.
In circumstances where a home is the bulk of an estate, your spouse鈥檚 right to continue living there for the rest of their life can significantly impact what you鈥檙e leaving to your beneficiaries.
Is reading this making you nervous?
You can take steps to protect yourself from the ticking of a clock having unintended consequences.
Cohabitation and prenuptial agreements can include clauses that prohibit filing a Land (Spouse Protection) Act charge.
To ensure enforceability, those agreements should be reviewed periodically and updated as necessary to ensure ongoing fairness over the passage of time.
An agreement with an aligned will that is fair on your death will not be varied.
Does the thought of dusting off a cohabitation or prenuptial agreement and reviewing it with your spouse sound uncomfortable as all heck? Perhaps because maintaining a 鈥渨hat鈥檚 mine is mine鈥� position after you鈥檝e been sharing your life together for a period of time no longer fits.
There are additional legal tools that can be put in place to help protect your interests as well.
Properly wrestling with these issues requires expertise in both family law as well as estate planning. I don鈥檛 have expertise in family law, nor do I have expertise in some more involved estate planning tools, but I can refer you to other lawyers who do.
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.
