Without A Will There’s Only The Hard Way For Common Law Spouses To Inherit

According to a survey by Lawyers’ Professional Indemnity Co. (LawPRO), approximately 56 percent of Canadians don’t have wills. The lack of a will can make it very difficult for common law spouses to inherit money and property left behind by the decedent. Here’s how intestacy laws affect you and what you can do to claim what’s rightfully yours after your spouse passes away.

Intestacy Laws in Canada

When a person dies without a will, the court will split up his or her property and money according to the laws outlined in the Intestate Succession Act. Each of the provinces and territories are different, but many allow legally married and common law spouses to receive a preferential share of the estate plus a percentage of remaining assets. In British Columbia, a spouse will receive up to $300,000 worth of assets plus 50 percent of remaining assets if there is only one child produced from the relationship or 33 percent if the couple had two or more children.

However, common law spouses are at a disadvantage over legally married spouses because they must prove they were in this type of relationship with the decedent. The problem gets even more difficult if the couple separated before the person died. Many provinces will ignore claims submitted by common law spouses who were not officially with the deceased at the time of his or her death, making it impossible for the spouse to retrieve any property that may belong to him or her.

Resolving Issues

The biggest problem is the courts generally won’t automatically assign the property to common law spouses. They must submit paperwork to the court requesting the inheritance and proving their relationship status and contributions to the union.

There are a couple of ways you can do this:

  • Provide statements of shared bank accounts and credit cards
  • Submit proof of ownership in residential property or leases
  • Present bills for shared utilities such as gas or electricity
  • Provide mail addressed to both parties sent to the same address
  • Present legal documents showing the person lived at the same address as the decedent (e.g. driver’s license or insurance policy)
  • Provide pictures, social media logs, and other similar social proof of the relationship

If you were separated from the decedent, you may still be able to claim some of the property left behind by the deceased if you can prove you paid for part or all of it. Whether you’re looking for a full inheritance or just the property you own, you should consult with an estate attorney from a firm like Kasman Sheldon L & Associate LLP for assistance with court processes.

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