Why It Is Important That People In A Common Law Relationship Have Wills To Protect Their Rights To Property And To Provide For Their Children

If someone is living in a common law situation, it’s imperative to have an up-to-date will and an estate plan to protect the rights of the surviving spouse.

Sometimes a client says, “Well, it’s a very small estate, and it’s all going to my spouse.” But people don’t understand that it’s not a marriage situation, and that their property will not automatically go to their spouse. Sometimes it’s a second relationship, so there might have been a previous marriage. In the second relationship, especially if the parties choose not to get married, they have to make sure that their estate plan and wills are up to date.

In a situation where parties are living in common law, they may have minor children who need to be provided for. If the common law husband dies with no will outlining what he wants to happen to his estate, including his life insurance policy, those children might end up inheriting a huge insurance policy at age 18, which is maybe not what the parent intended. Most clients would not want their 18 year olds inheriting hundreds of thousands or millions of dollars. But that’s what could happen if there’s no will; that 18-year-old child would have every right to call upon that money and then do whatever he or she wants to with it. That is just one example of a situation in which a lack of a proper estate plan or properly drafted will causes tremendous problems.

By spending a few hundred dollars, people can get a will done and make sure that their intentions are carried out after they’re gone. This is true in any case, but it’s especially important in a common law relationship. If common law couples don’t make that rather modest investment, their survivors could be looking at thousands of dollars in legal costs. For instance, a situation can arise in which common law spouses have no will and the common law husband dies. There are no children involved, but he has siblings who survive as his closest next of kin as well as the surviving common law spouse. Under the Succession Law Reform Act, the siblings if they are the closest surviving relatives will inherit the entire estate. The spouse perhaps does not get along with the siblings, who are therefore not going to be in a generous mood to share any of the estate with the surviving spouse. She must litigate and sue for support or maybe sue for a share of the assets. Surely that is not what the deceased intended.

Because common law relationships are becoming more and more common, there is a misconception that partners in a common law relationship have the same rights as married spouses. But currently, in Ontario, they don’t, and that is why it is so important to make a will that clearly indicates your wishes.

If you, or someone you care about, is dealing with estate law issues in the Markham, Ontario Region, contact Charles B. Ticker for a consultation.

This article is taken from a November 13, 2008 interview with Charles B. Ticker, Estate Lawyer with Charles B. Ticker Law Office, a Markham, Ontario Wills and Estate Law Firm. This article and website provide general information on legal and related matters and should not be relied upon as legal advice. If you require legal advice, you should consult and retain qualified legal professionals in your area to advise you about your particular situation and the law in your jurisdiction as laws vary from province to province, state to state and country to country.