Today in Newfoundland and Labrador more and more people find themselves in common-law relationships. A common-law relationship is defined by the Supreme Court of Newfoundland and Labrador as “one where two people are living together in a conjugal (marriage-like) relationship without having been legally married. The two people can be of the same or of the opposite sex.” The definition of spouse can be found in the Family Law Act for Newfoundland and Labrador which states that “spouse means either of two persons who are married to each other.” This blog post will discuss the rights of a common-law partner to inherit property from their partner upon the partner’s death.
A common-law partner can inherit any portion of an estate (the deceased person’s assets) under the deceased person’s Will, if that person:
a) Has a valid Will; and
b) Has left any portion of their estate to the common-law partner.
While a discussion of what makes a Will valid is beyond the scope of this blog post, a Will is the best way for someone to decide what happens to their assets after their death. If a person is in a common-law relationship and they want their common-law partner to inherit any portion of their estate, they should seek the advice of a lawyer and draft a Will. Under a Will, the common law partner can leave any portion of their estate to any person or multiple people. This is the case even if the common law partner is still legally married to a former spouse.
When a person dies intestate (without having made a Will), the distribution of their assets is subject to the rules under the Intestate Succession Act. If the deceased person was in a common-law relationship at the time of their death, the common law partner of the deceased will not automatically inherit any portion of the deceased person’s estate. However, if the deceased person was married, the spouse of the deceased person does automatically inherit a portion of the deceased person’s estate under the law. The rules under the Intestate Succession Act prescribe an order that the Court must follow in the distribution of the deceased’s assets that does not include a distribution to common law partners. That order is as follows:
1. If there is a spouse and no children, the spouse will inherit the entirety of the Estate;
2. If there is a spouse and one child, half of the estate will be inherited by the spouse, and the other half to the child;
3.If there is a spouse and more than one child, one third of the estate will be inherited by the spouse and the rest shall be divided by the children;
4. If there is no spouse, the estate shall be inherited by any children, in equal shares;
5 If there is no spouse and no children, the father and mother of the deceased will
inherit the estate in equal shares;
6. If there is no spouse, no children, and the father and mother of the deceased are also
deceased, any siblings of the deceased will inherit the estate in equal shares;
7. If there is no spouse, no children, the father and mother of the deceased are
deceased and the deceased has no living siblings, any nieces and nephews of the
deceased will inherit the estate in equal shares;
8. If there is no spouse, no children, the father and mother of the deceased are also
deceased and the deceased has no living siblings or nieces and nephews, any remaining next-of-kin (blood relative) will inherit the estate in equal shares.
The Intestate Succession Act does not provide for any inheritance by the common-law partner. Therefore, if you are a common-law partner who wishes to leave any portion of your estate to your partner, you must create a Will in order to leave that portion of your estate to your partner.
It is also important to note that common-law partners may enter into a Cohabitation Agreement, which is a contractual agreement between common-law partners outlining certain provisions of the relationship. Even if the Cohabitation Agreement states that the common-law partner is to inherit any portion of the estate upon the other partner’s death, the rules regarding an intestate estate will take precedence over that Agreement.
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