Why this matters in estate law.
Among other things, being a spouse means that two people have certain legal rights and obligations towards each other. The law says that spouses share in the debts and the assets that the couple accumulate during the course of their relationship. When one spouse tragically dies, usually the surviving spouse is entitled to a portion of their deceased spouse’s assets.
Marriage
Married people are spouses. That’s easy to prove because there was a ceremony, guests attended, someone had a little too much to drink at the reception, and there is video. There is also a legal document – the marriage certificate – saying the couple is married.
Common law
However, what happens if two people intended on committing their lives to each other exclusively, actually lived in a committed relationship with each other, but did not get married? In this case the unmarried couple may also be spouses in the eyes of the law with all of the legal obligations and benefits that a formally married couple have. The law calls this kind of relationship ‘common-law.’ This does not mean that the relationship is ‘common’ or in any legal sense different than a marriage. It just speaks to the origin of the relationship: while married spouses have a formal declaration of their union, common-law relationships arise from the couple’s conduct. The common-law couple commit to one another by living that way without a formal legal declaration of their intent to do so.
When tragedy strikes and one common-law spouse dies, the surviving spouse may be required to prove the existence of what the law calls a “marriage-like” relationship in order to claim an interest in the deceased spouse’s estate.
This is a complicated question…
In the estate law context, the following scenario frequently goes to court: a deceased person is survived by a partner as well as children from a previous relationship. The surviving partner takes the legal steps to administer the deceased person’s estate and to claim a ‘spousal’ interest in the estate. However, the children deny that the surviving partner had a marriage-like relationship with their deceased parent.
If the partner and the children cannot settle the dispute, the matter goes to court. A judge is then required to look at the evidence to determine if the couple was in a marriage-like relationship or a relationship that may have been romantic but was not marriage-like. The stakes are high in these kinds of cases because if the judge agrees that the partner was a common-law spouse then the children will lose the case and likely have to pay the spouse’s legal costs. If the judge finds that the partner was just a boyfriend or girlfriend and not a spouse, then it’s possible the partner gets nothing from the estate and may also have to pay legal costs.
…because marriage-like relationships are not all the same
Determining if a partner is a ‘spouse’ in the eyes of the law is complicated because it requires a very detailed look into the lives and the relationship of the deceased and the partner. The judge must decide if the couple was in a committed marriage-like relationship. Judges recognize that marriage-like relationships come in various forms. That is why each relationship must be reviewed on its own specific facts and considered in its own context. The law requires judges apply a flexible approach when analyzing people’s relationships because each relationship is unique.
How then does the law define a ‘spouse’?
The law provides guidelines and directs what a judge must look at when required to determine if a relationship is marriage-like and therefore a common-law relationship.
Together at least two years
In British Columbia, the Wills, Estates and Succession Act (“WESA”) says that in order to be spouses the couple must be living in a marriage-like relationship for at least 2 years before death (section 2(1)(b)).
Sharing life together with intent
Every relationship is unique. In some relationships, people share bank accounts and wifi passwords. In some relationships, people vacation together and refer to one another in public as “husband” and “wife”.
The judge will look at several factors to determine if there is enough evidence to show the couple intended to be in a marriage-like relationship or if they were just intimate without intending to share life together in a broader sense.
Some of the factors the judge looks at are:
(1) Shelter:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
(2) Sexual and personal behaviour:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
(3) Services:
What was the conduct and habit of the parties in relation to:
(a) Preparation of meals,
(b) Washing and mending clothes,
(c) Shopping,
(d) Household maintenance,
(e) Any other domestic services?
(4) Social:
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
(5) Societal:
What was the attitude and conduct of the community towards each of them and as a couple?
(6) Support (economic):
(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) Children:
(a) What was the attitude and conduct of the parties concerning children?
The above seven factors are not the only ones a judge might look at. No one factor is more important than the others. It is also important to note that no single factor guarantees a judge will find that at common-law relationship exists (or in its absence – does not exist). For example, courts have found that couples who maintained separate households were indeed spouses. However, judges have also found that partners who lived in the same house for more than two years were not spouses. The specific and unique facts of each case are crucial in the judge’s legal analysis.
Determining spousal status is legally significant and difficult. Early legal advice is vital.
Ultimately, the court is trying to determine if the parties intended to be spouses. In estate litigation cases getting evidence of intent is more difficult because one of the partners has died and therefore cannot tell the judge what their intent was. The court is left with the difficulty of making a determination on evidence provided by the surviving partner who has a clear self-interest in being a spouse. For this reason, the surviving partner has the legal burden to provide the evidence that convinces the judge that a marriage-like relationship existed.
Because each case turns on specific facts unique to each situation, it is crucial to get legal advice as early as possible so you can protect your legal position.
