The rights of common-law spouses when it comes to wills and estates

“What about common-law spouses?” is a question I posed at the end of last week’s column.

I discussed the rights of stepchildren in estate matters. Stepchildren are treated 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. They have no right to challenge a will that inadequately provides for them or disinherits them altogether.

But what about common-law spouses? There is good news, or bad news, depending on your perspective

In estate matters, the law treats common-law spouses exactly the same as married spouses. You don’t have to “put a ring on it”.

All of your common-law spouse’s 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 than if you were married, and if your common-law spouse does have a will but 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 feel 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 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’s assets and spousal maintenance if the marriage doesn’t 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, where that line is drawn? What does it take to become a common-law spouse? That can be confusing. One reason for the confusion is that different laws have different definitions. So, I’ll answer the question solely in the context of estates.

The Wills, Estates and Succession Act says you are spouses if you have lived with each other in a “marriage-like” relationship for at least two years.

That begs the question, what is a “marriage-like” relationship?

A judge on the top court of British Columbia wrote in a recent decision (Coad v. Lariviere, 2022 BCCA 222) “…there 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.”

Another decision (Gorecki v. Byelyeychuk, 2024 BCSC 1589) handed down less than two months ago, noted: “The 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.”

A list of factors the court might consider was made by the trial judge in the Coad case:

1. The parties’ intentions, particularly their expectation of whether the relationship would be lengthy and of indeterminate duration.

2. Objective evidence of the parties’ lifestyle and interactions supporting a finding that their interactions “closely resembled those typical of married couples.”

3. Whether the parties treat themselves as a family unit.

4. Whether cohabitation was coupled with romantic and sexual relations

5. Evidence of emotional interdependence, mutual commitment and attachment.

6. Whether the parties co-mingled assets and shared expenses.

7. Whether the parties treated themselves as single or cohabiting for income tax purposes.

It’s important to remember the courts are not treating this issue as a checklist exercise. And don’t make the mistake of thinking you’re 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’s 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. Boughton knew about Widner’s wife but believed his classic promise that he planned to divorce his wife and marry her.

Mrs. Widner had no knowledge of her husband’s relationship with Boughton. Mr. Widner maintained two households, telling his wife he had to be away regularly because of work. Some others reading this might be feeling a cold shiver.

The punch line is, 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 (bccourts.ca/jdb-txt/sc/21/03/2021BCSC0325cor2.htm).

I suspect many questions might arise out of this column. E-mails me your questions and I will identify which ones I might answer in future column.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.