Common-Law Spouses And Inheritance: Who Inherits?

Inheritance laws govern the rights of a decedent's heirs to inherit property. In the absence of a will, the state's inheritance succession laws will determine who inherits and how much they are entitled to. While family members are prioritized in such cases, individuals can choose their beneficiaries in their will, which can include common-law partners. Common-law spouses can inherit from a decedent's estate, with varying rights and privileges based on the region's specific laws. Proving a common-law marriage may be necessary for inheritance and other legal matters, and evidence requirements can differ depending on the circumstances. Understanding inheritance laws and seeking legal advice is essential for effectively navigating inheritance-related matters.

Can a common-law spouse inherit?

Inheritance laws in Texas

Texas is one of the few states that recognize common-law marriages, also known as informal marriages. In a common-law marriage, the couple agrees to be married, lives together as spouses, and represents themselves socially as a married couple.

In Texas, a common-law spouse is afforded the same rights and privileges as those in a formal marriage. These rights include community property, homestead rights, and exempt property. Upon the death of one spouse, the surviving spouse retains their 50% interest in the community property, has the right to live in the primary residence for the rest of their life, and can claim certain personal property as exempt from creditors' claims and estate administration expenses.

During the estate administration process, the court may grant the surviving spouse a family allowance, which is a reasonable amount of money for the spouse's maintenance and support for up to one year. Proving a common-law marriage in Texas may require evidence such as a signed declaration of informal marriage, joint tax returns, shared bank accounts, property records, and witness testimony from friends and family.

In terms of inheritance laws in Texas, no one is entitled to an inheritance if they are not named in the will. However, spouses and pretermitted children (children born after a will is executed) have special rights. Intestate succession is the process that determines the distribution of assets when a person dies without a will. In this case, spouses inherit first, followed by children, grandchildren, parents, and siblings. The size of each child's share depends on the number of children, the marital status of the parents, and whether the spouse is also the parent of the children. Adopted children will receive a share, while foster and stepchildren who have not been legally adopted will not automatically receive a share.

It is important to note that having a will does not guarantee that your wishes will be fulfilled exactly as intended. A will must be properly drafted and executed to avoid being challenged in court. Blended families and common-law marriages can add complexity to estate planning and inheritance rights in Texas, so it is recommended to work with an experienced estate planning attorney.

Common-law marriage requirements

In the United States, common-law marriage has existed since colonial times, and it is still recognised in seven states and the District of Columbia. In the context of common-law marriage, the term "common law" refers to a marriage that is considered valid by both partners but is not formally recorded with a state or religious registry and does not involve a formal civil or religious ceremony.

To establish a common-law marriage, couples must meet certain requirements, which vary depending on the state or country. Here are the general requirements for common-law marriage:

• Agreement to be married: Both partners must intend to be married and agree to consider themselves as such.
• Cohabitation: The couple must live together as husband and wife, typically for a \"significant\" period, although there is no statutory requirement for the length of time. The longer the couple lives together, the stronger their case is for common-law marriage.
• Representation: The couple must hold themselves out to friends, family, and the public as being married. This includes using shared last names, referring to each other as spouses, and filing joint tax returns.
• Legal capacity: Both partners must be of legal age, typically 18 years old, and of sound mind. They must also not already be married to other people.

In terms of inheritance, a common-law spouse can inherit from their partner's estate if the partner died intestate (without a will) in certain regions, including British Columbia, Manitoba, Saskatchewan, and the Northwest Territories in Canada. In the US, Texas is one state that recognises common-law marriage for inheritance purposes, affording common-law spouses the same rights as those in a formal marriage. Without a will, a common-law partner generally has no inheritance rights, and the estate will be distributed according to succession laws that prioritise legal spouses and family members. However, with a will, individuals can choose to leave their assets to anyone, including common-law partners.

Inheritance rights in Canada

Inheritance law in Canada is a provincial matter, meaning each province has its own laws governing inheritance. While many provinces handle inheritance law in similar ways, there are some nuances in each jurisdiction. In general, inheritance is the distribution of assets after someone dies, and it can happen with or without a will.

If the deceased left a valid, legal will, the estate is distributed to the beneficiaries named in the will. If the deceased did not leave a will, they are deemed to have died "intestate," and their estate is dealt with based on provincial rules. Intestacy laws in each jurisdiction prioritize spouses and children, but the amount and percentage each receives can vary.

In Canada, common-law status typically refers to a person living with someone they are not legally married to but are in a conjugal relationship with. Common-law relationships are recognized in certain situations, and the definition of common law varies depending on the context. For federal tax purposes, "living common-law" refers to couples who have either been living together for 12 continuous months or who share a child by birth or adoption. The 12-month timeline also applies in the context of immigration. However, since family law falls under provincial law, the definition of common law in other contexts is determined by each individual province.

Some provinces, including British Columbia (BC), Alberta, Saskatchewan, Manitoba, Yukon Territory, and the Northwest Territories (NWT), include common-law partners in their definition of spouses for inheritance purposes. In these provinces, common-law partners can inherit intestate estates. However, in most other provinces, including Ontario, Quebec, New Brunswick, Prince Edward Island, Nova Scotia, and Newfoundland and Labrador, common-law partners are not considered spouses, and therefore do not have the same inheritance rights as legally married spouses. In these provinces, common-law partners may have to file a claim to receive a share of their partner's estate, and there is no guarantee that the claim will be approved.

To ensure that a common-law partner is protected in the event of their partner's death, it is important to create a will naming them as a beneficiary. By creating a will, individuals can ensure that their estate is distributed according to their wishes and reduce the amount of work and stress for their loved ones.

Inheritance tax (IHT) benefits

Inheritance tax (IHT) is a tax on the 'estate' of a deceased individual. In the UK, only 1 in 20 estates pay inheritance tax. This is because each individual has an IHT allowance of £325,000 ("the nil rate band"), and if certain criteria are met, an additional IHT allowance of £175,000 ("the residence nil rate band").

Assets passing between spouses are exempt from IHT ("the spouse exemption"). This means that if a deceased individual was married or in a civil partnership, anything they leave to their spouse or civil partner will be exempt from inheritance tax, regardless of the value of the estate. This does not apply to cohabiting couples, even if they have children together. In the UK, a ""common-law spouse" has no legal meaning, and the surviving cohabitee is not entitled to inherit by default.

In the US, the situation varies by state. Only residents of five states are at risk of paying an inheritance tax on assets they receive from a decedent: Kentucky, Maryland, Nebraska, New Jersey, and Pennsylvania. Most states have exemptions for immediate family members (spouses, parents, children, and siblings).

Spousal share laws

In most states, the elective share amount is one-third to one-half of the deceased spouse's estate. However, in some states, this share amount is a fixed amount, a percentage, or the amount that the surviving spouse would have received if the deceased spouse had no will. It is worth noting that each state has rules limiting the time for electing, and if the spouse delays, the right of election lapses.

In the case of common-law spouses, inheritance rights can vary significantly depending on the region. In some places, like Texas, a common-law spouse is afforded the same rights and privileges as those in a formal or traditional marriage. This includes community property, homestead rights, and exempt property. However, in other regions, a common-law partner may only inherit if their partner died intestate (without a will) in specific jurisdictions or if they are named as a beneficiary in their partner's will.

To establish a common-law marriage, requirements vary but can include a signed declaration of informal marriage, joint tax returns, shared bank accounts, property records, and witness testimony. Ultimately, the specific evidence needed to prove a common-law marriage can differ depending on the circumstances of each case and the region.

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