Under the Wills Estate and Succession Act (WESA), spouses in a common law or “marriage-like relationship” can inherit the deceased’s entire estate if that person dies intestate — without a will — and there are no direct descendants. If there are descendants, the common-law spouse could receive the first $300,000 of the estate, plus a portion of any remainder.
However, determining what constitutes a “marriage-like relationship” is not cut and dried. At a minimum, the appellant had to prove on the civil standard that she lived with the deceased in a marriage like relationship for at least two years. If the parties ceased to be spouses before the intestate’s death because their marriage like relationship was “terminated” by one of them, there would be no legal entitlement to advance a claim against the estate as a spouse.
However, varying factors come into play when considering what establishes these types of relationships. The judge described it as an “elastic” concept that engages a multi faceted analysis at trial. He spoke about the list of factors as set out in 1980’s Molodowich v. Penttinen but cautioned against taking a “checklist approach.” Instead, the trial judge said it was his obligation to consider the matter “holistically” and examine all relevant factors in deciding whether there was a marriage like relationship of at least two years between the appellant and the deceased.
Every relationship is different — and so is every analysis. This is one of the main reasons couples in similar scenarios should consult with a lawyer to make sure they understand if their relationship is common law or “marriage-like.”
In this case, both levels of the court concluded the couple never lived in a marriage like relationship. Perhaps if they had consulted with a lawyer and had a cohabitation agreement drafted, there would be less doubt about the status of their relationship.