I often get asked what’s the difference between being married and being in a common law relationship when you die.
If you don’t have a Will in Prince Edward Island, the answer is simple: there is no difference.
In PEI, the estate of an intestate (someone who dies without a Will) goes solely to his or her surviving spouse if he or she dies without any children. The spouse gets a portion of the Estate if the deceased had children.
The Estate legislation in PEI does not provide a definition of the word “spouse,” but there’s a process that takes you to the Family Law Act, which defines “spouse” as one of four possibilities including a common-law spouse, which is defined as persons who are not married to each other but have cohabitated for a period of at least three years.
While there isn’t a reported decision on this situation on PEI, I have appeared in the Supreme Court of Prince Edward Island and obtained an Order confirming that a common-law spouse was a spouse for the purpose of an intestacy.
This legislative change only occurred in 2008, when the Domestic Relations Act was brought in, so many people aren’t aware of the significance of being in a common law relationship and what it means when they die.
So what should you do?
First, you should have a Will that says how you want your estate distributed. That’s the best way for things to be clear to your loved ones. Second, some people want to have co-habitation agreements with their common-law spouses to set out various rights and/or responsibilities, including rights on death.
The lawyers at Key Murray Law would be happy to assist you with your Estate planning needs, including discussing rights and responsibilities with regards to common-law spouses.
Cynthia A. Taylor
Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.