For those in common law or same-sex relationships, changes to the meaning of “spouse” in many federal and provincial laws will affect your estate planning.
Much of the Modernization of Benefits and Obligations Act came into force on July 31, 2000, giving same-sex partners the same rights and obligations of common law couples under dozens of federal statutes.
Many amendments to provincial laws also came into force in 2000. The amendments modify the definition of spouse in 32 provincial statutes, including the Family Maintenance Enforcement Act, Home Owner Grant Act, Property Transfer Tax Act, Estate Administration Act and Wills Variation Act.
Wills Variation Act
Earlier this year, the Wills Variation Act was found to violate the Charter of Rights because it excluded common law and same-sex spouses from the benefits and protection of the Act. It now provides that “spouse” means (in addition to a legally married person) a person who has lived in a “marriage-like relationship” with another person, including a person of the same gender, for at least two years. As a result, common law and same-sex partners may now challenge the will of their partner if it does not adequately provide for them. The two-year period of residing together can be at any time during the life of the deceased partner. As a result, a deceased person may have multiple “spouses”, and there is the potential for multiple claims. The Act is not clear about how the court should proceed in situations involving multiple spouses.
Estate Administration Act
When a person dies without a will, the estate is divided between the spouse and children, if any. Previously, only married spouses were counted, although common law spouses had the right to apply for support from the estate. The Estate Administration Act no longer allows common law spouses to apply for support, but instead provides that the share of a surviving spouse in the estate of a person who dies without a will belongs not only to a spouse married to the deceased, but also to any common law or same-sex spouse who lived with the deceased for at least 2 years immediately prior to the death of the deceased. If there is more than one spouse, the spouses are to share the spousal share in the proportion determined by the court, so that the share for any surviving children is not affected.
If you have questions about how these changes may affect your estate planning, please call us.