Cecily Zamora
The death of a common-law spouse can be a complicated and stressful event, especially when it comes to inheritance and property rights. While common-law spouses enjoy many of the same rights as married couples, there are some key differences in how their estates are handled upon death. In the absence of a will, the estate of a common-law spouse typically goes to their children or other relatives, and the surviving spouse may have no automatic right to inheritance or property. However, a common-law spouse may be able to claim inheritance or support, depending on the laws of their state or province and whether they can prove dependence on the deceased. To ensure that your wishes are carried out and to avoid potential legal complications, it is crucial to have a valid will in place.
| Characteristics | Values |
|---|---|
| Common law spouses treated the same as married spouses | No, they do not automatically have the same common-law property division rights. |
| Common law spouses' rights when the other dies | It depends on the laws in your state/province and whether there is a will. |
| Common law marriage definition | A union between two consenting adults who live together and present themselves as husband and wife without ever going through the formal process of actually getting married. |
| Proving common law marriage | Evidence of cohabitation, joint bank accounts, utility bills, insurance policies, joint tax returns, legal paperwork, and witnesses. |
| Common law spouse dies without a will | In Ontario, the surviving spouse will not inherit any part of the estate. However, they can file a claim against the estate by filing a dependency claim or claiming unjust enrichment. |
| Common law spouse dies with a will | The surviving spouse may be entitled to property, pension, and survivor benefits. |
| Children involved | The surviving spouse may automatically become the guardian of the child, but step-children may require court approval. |
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What You'll Learn
Inheritance claims
However, a common-law spouse can make a claim in court to seek support from the estate as a dependent. To be considered a dependent, the surviving spouse must prove they were receiving support from their deceased spouse or had a legal right to receive support from them. The court may then order a certain amount of money, a lump-sum payment, periodic payments, or a specific asset transfer.
In Texas, a common-law spouse is afforded the same rights and privileges as those in a formal or traditional marriage. They can inherit from the decedent's estate, retain their 50% interest in community property, and have homestead rights to live in the primary residence.
In some provinces and territories, if a common-law partner dies without a will, the surviving partner inherits as if they were a legally married spouse.
It is important to consult a lawyer to understand the specific inheritance laws in your region and to ensure your rights are protected.
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Pension and survivor benefits
The death of a common-law spouse can result in survivor pension benefits for the surviving partner. The specifics of these benefits vary depending on the country and the type of pension plan involved. Here is an overview of pension and survivor benefits in different contexts:
Canada Pension Plan (CPP) Survivor's Pension:
In Canada, the CPP offers a survivor's pension to the legal spouse or common-law partner of the deceased contributor. To qualify as a common-law partner, a couple must have lived together in a conjugal relationship for at least one year. The survivor's pension is a monthly payment, and the amount is calculated based on the contributor's retirement pension and the survivor's age at the time of the contributor's death. It is typically 60% of the contributor's retirement pension, but this may vary if the survivor is already receiving other CPP benefits.
United States Veteran Affairs (VA) Survivor's Pension:
In the United States, the VA provides survivor benefits to qualified surviving spouses and unmarried dependent children of wartime veterans who meet certain income and net worth limits. To be eligible, the veteran must not have received a dishonorable discharge, and their service must meet specific requirements regarding active duty and wartime service. The benefit provides monthly payments, and eligible survivors can apply through various methods, including working with an accredited attorney or using the QuickSubmit tool.
Private Pension Plans in the United States:
The federal pension law, the Employee Retirement Income Security Act (ERISA), mandates that private pension plans provide benefits to surviving spouses. The Retirement Equity Act (REA), enacted in 1984, further established that an employee could not waive their spouse's rights to survivor benefits without the spouse's written permission. If your spouse worked for a state or local government, the specific state laws regarding survivor benefits may differ.
It's important to note that the laws and eligibility requirements for survivor benefits can vary by jurisdiction and the type of pension plan involved. It is always advisable to consult official sources or seek legal advice for the most accurate and up-to-date information regarding pension and survivor benefits in your specific situation.
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Guardianship of children
When a common-law spouse dies, the surviving spouse will automatically become the guardian of the child. If the biological parents are separated, and one of the parents has never regularly cared for or lived with the child, the parent who actually lived with and cared for the child is the child's sole guardian.
For step-children, the surviving spouse will have to apply to the court for guardianship, especially if the deceased did not make a will appointing them as the guardian or if they were a joint guardian with the other biological parent. The surviving spouse should speak to a lawyer if they have any questions about guardianship.
In the case of both parents dying, it is crucial to have child guardianship established. This ensures that the children are taken care of in a way that honours the parents' wishes and protects the safety and well-being of the child. The best way to do this is to name a guardian in your will. However, if no guardian has been named in the will, it becomes the responsibility of the judicial system to determine the best outcome for the child. Anyone can apply for the job, and it is up to the judge to appoint the person.
In some cases, the court may appoint someone else as the guardian of the child, which may not be the first choice of the parents. The courts have the final decision, but they are unlikely to argue with who is named in the will unless there is a clear reason not to allow that person to be the guardian, such as if the named guardian is unfit to take care of a child. One way to help the judge make this decision is to include a "letter of wishes" or a "letter of instruction" in the will, which is essentially a list of ways the parent wishes for the child to be raised.
Guardianship is when an adult, who is not a child's parent, is legally responsible for the child's care because the child's parent is unable to care for them. The guardian must also provide the child with housing, food, clothing, and is responsible for the child's safety and protection. Guardianship is different from adoption, as in a guardianship, the parents' rights to child custody are taken away only as long as the guardianship lasts. Once they are able to care for their child again, the parent can ask a judge to end the guardianship.
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Proving common-law marriage
Common-law marriage, also known as marriage without formalities or an informal marriage, is a valid way for a couple to marry in some jurisdictions. However, it is important to note that not all jurisdictions recognize common-law marriage, and the requirements for proving such a marriage vary.
In Texas, for example, common-law marriage is recognized, and it can be proved through various documents and evidence. If a couple chooses not to declare their common-law marriage, they may need to provide lease agreements, tax returns, and insurance policies to establish their marriage. Affidavits, which are written statements made under oath, can also be used to prove a common-law marriage. Personal affidavits can include details such as the date and location where the couple mutually agreed to become spouses, previous marriages, and any other information that helps demonstrate a spousal relationship. Additionally, friend and family affidavits from individuals familiar with the relationship can also be helpful.
In Canada, the provincial Family Law Act and other provincial laws define a "spouse" as someone who is legally married or has lived in a "marriage-like relationship" for at least two years. The Canada Pension Plan and other federal laws define a spouse as someone who has lived in a marriage-like relationship for at least one year. This definition impacts entitlement to pension and survivor benefits when a spouse dies.
It is important to consult with a lawyer or legal professional to understand the specific requirements and rights associated with common-law marriage in your jurisdiction. The laws and definitions of "spouse" can vary, and seeking legal advice will help clarify your rights and options.
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Property rights
Common-Law Marriage Recognition
The first step is to determine whether the state or province recognizes common-law marriages. Some jurisdictions have specific requirements for establishing a common-law marriage, such as living together for a certain period (typically one or two years) and holding themselves out as a married couple. If the state recognizes common-law marriage, the surviving spouse may have similar rights to those of a legally married spouse.
Joint Ownership or Tenancy
If the common-law couple owned property together, the type of joint ownership or tenancy can significantly impact property rights. There are two common types of joint ownership: tenants-in-common and joint tenants. Tenants-in-common each own a share of the property proportional to their contribution. In this case, upon the death of one partner, the surviving partner retains only their share of the property, and the deceased partner's share becomes part of their estate. On the other hand, joint tenancy with the right of survivorship allows the surviving partner to automatically inherit the entire property.
Wills and Inheritance
If the deceased common-law spouse left a will, the surviving spouse's rights to the property will depend on whether they are listed as beneficiaries. Intestacy laws, which determine the distribution of the estate when there is no will, generally do not recognize unmarried couples. Therefore, if the deceased spouse did not leave a will, their property will typically go to their closest relatives, such as children or parents, rather than the surviving common-law spouse. However, in some jurisdictions, the surviving spouse may have the right to make a claim against the estate, especially if they contributed to the acquisition or maintenance of the property.
Separation Agreements
If the common-law couple had a separation agreement in place before the death, this document may outline how their property should be divided. Separation agreements can include provisions for property division, spousal support, and other related matters.
Provincial and State-Specific Laws
Given the complexity and variability of property rights for common-law spouses, it is essential to seek legal advice from a family law or estate planning attorney to understand your specific rights and options.
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Frequently asked questions
A common-law spouse is someone who is considered married without having legally married their partner. Common-law marriage is a union between two consenting adults who live together and present themselves as husband and wife.
If your common-law spouse dies intestate (without a will), you may not be entitled to any part of their estate. However, you can file a claim against the estate by filing a dependency claim or a claim for unjust enrichment.
To prove your common-law marriage, you will need to gather documents that show evidence of cohabitation, such as joint bank account statements, utility bills, insurance policies, and tax returns. You may also need to obtain copies of any legal paperwork, such as wills or powers of attorney, and seek legal guidance from a lawyer.
Your rights to your common-law spouse's property after their death will depend on the laws of your state or country. In some cases, you may be able to inherit property if you had a cohabitation agreement or if you had joint ownership of the property.
You may be entitled to pension and survivor benefits, such as the Canada Pension Plan benefits, if you and your spouse lived together for a certain period before their death. You will generally need to apply to the administrator of a pension plan to receive these benefits.
