Common Law Relationships and Wills

COMMON LAW RELATIONSHIPS & WILLS

Having a valid will in place is no doubt important for anyone, but more so for a common law spouse. In this article I will explain the different treatment for married and common law spouses on death. After reading this, I guarantee you will not have a good night’s sleep until your wills drafted and signed!

For married spouses, the major disadvantages to dying without a will (intestate) are 1) the mess that you leave for your loved ones and 2) not being in control of who gets what. The legislated “intestacy distribution” may not be what you think it is! In Ontario, your spouse will receive the first $200,000 of your estate and the spouse and your children will share the rest equally.

If you are in a common-law relationship, however, this legislated distribution DOES NOT APPLY. The law does NOT treat married spouses and common law spouses the same regarding entitlement of assets on death. Common-law spouses are not automatically entitled to assets on death the way married spouses are.

Nor are common law spouses entitled to make an “equalization” claim against the estate. If a person dies without a will, their married spouse has the option of choosing their inheritance. They can allow the intestacy distribution to apply as described above. Or, a second option is to elect instead an equalization payment out of the estate. The amount available here would be half of the “net family assets”. This option generates a result similar to the equalization payment in a separation or divorce situation.

What options do common law spouses have on death where no will exists? Any option involves hiring a lawyer to take the estate to court – a costly and unpleasant event! They can claim for support from the estate IF they can prove that they were financially dependent on the deceased. This is the same right afforded anyone who was dependent on the deceased. Very often dependent children would step ahead in line of a dependent common law spouse. The other option is to argue that the deceased was actually holding property in trust for the survivor. Of course, this is a strong argument if the assets have been paid for -or partially paid for – out of the survivor’s pocket!

Due to the lack of legislation at this time to protect common law spouses on death, it is imperative that they have valid wills to protect each other’s interests. Having a will removes the possibility that one is left penniless on the death of their common law spouse. For both married and common law spouses, owning property as joint tenants, and completing the beneficiary designations for insurance policies, RRSPs and other registered pension plans are other ways of ensuring your loved one is provided for.

While every effort has been made to ensure the accuracy of this article, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

By Maureen C. Tabuchi, LL.B,MTAX

Take Care of YOU

Take Care of “YOU”

It is 9pm the kids are still up, the kitchen is a mess, and you have a huge presentation tomorrow!!

All you want to do is fall on your knees in the middle of the kitchen, wave your arms in the air and cry……this is we know is not possible, but the thought sure feels good.

After a separation you need to Take Care of You.  For days, months or even years you have pondered what it would be like without the fighting and the tension between you and your spouse.

It was hard though to imagine what it would be like taking care of the house, the kids, the shopping, cooking, repairs, the dog, and of course working full time.

You are in the thick of it, and somehow you are getting lost in the days.  The do list is on the fridge, and everyday it seems that nothing is being crossed off.   Somehow it appears that every day it gets longer and longer.

It is time to sit on the kitchen floor and think about YOU!!  What makes you happy?  Even if all you have is 20 min a day, you will need to find something that puts a smile on your face, and you know it is because “YOU ARE WORTH IT”.

This is where you will really need to do some soul searching.  If you only have a short amount of time daily you need to decide what really makes you happy.   It is important to have a few things that you can turn into “ME” time.  A few things could include; reading, walking, writing in a journal, coffee with a friend, mediating, exercising or just sitting in a quiet corner with the lights low, and a candle flickering in the background.

It is so important to take care of yourself while you are trying to take care of everyone else, especially during a time of emotional turmoil.  You need to have your strength to deal with all that will be coming your way.

One other way of taking care of yourself is too look into the support groups that are available in your area.  You need to remember that you are not alone!  There are thousands of people in the same position, and going through the same emotions you are. Just simply sharing some of your concerns with others can ease the pressure.

These groups can be found on the internet or please feel free to contact us, and we would be more than happy to let you know what is available in our community.

Beverly MacKay

Family Law Clerk

705-252-3817

Make Time for Fun

Make time for Fun

Really, what is better than hearing the laugh of a child!  It is amazing if you look around a waiting room full of adults and children alike.  The tension is written all over the faces of the adults if a child is crying.

Now, feel the excitement while the child laughs, that belly laugh we all love so much.  Feel the happiness in the air.  There are smiles all around the room, and people join in the laughter.  We need to incorporate that infectious laughter into our daily lives.

During a separation it can be a very difficult time, and it can be hard to incorporate “fun time”" with the kids in the daily “to do lists”.

One great way to always make time for fun with the kids is to create a family fun jar.  This is an awesome way for the whole family to have input into what types of activities everyone enjoys.  Just make it clear to the kids the amount of money that can be spent on the activities. Sitting around the dining room table one night, bring a jar, and let everyone decorate it.  Next, everyone gets a few pieces of paper, and has the opportunity to write fun activities on their paper.

A picnic, playing a board game, or throwing the ball in the yard are just a few of the things that families can do that don’t cost anything.  But, of course if you have a few extra dollars your list could include; mini putt, glow in the dark bowling, a movie and of course a great day at Wonderland.

After everyone has decided on their activities, and the jar has been decorated, it is time to throw all the pieces into the jar.

Once a week, twice a month, or even once a month, (the more often you can do this the better for the family) pull out the jar and pick your fun adventure.  Every week someone else gets to take a turn in picking the activity.  Once chosen, read and be prepared to enjoy.

Both children, and adults need to keep their sense of belonging when the families are changing.  This is just one of the many ways to keep the kids happy, and give them a sense of making decisions in the family.

With the family fun jar there is only one rule…..laugh till it hurts!

Beverly MacKay

Family Law Clerk

705-252-3817