Common Law Spouse Without A Will – A Case Study

by Marek S. Malicki

Our firm recently had a client whose common-law spouse of 20 years had died without making a will. Their principal residence was in his name alone. They had two children in their teens but he also had a son from an earlier relationship. They had both contributed to the maintenance of the property but he had paid for its purchase before they commenced their relationship.

On an “intestacy” (no will) the property passes to the three children, one of whom is still not of the age of majority. The Children’s’ Lawyer must be involved.

We were successful in ensuring that our client could remain in the property and ultimately get title.

But the cost and stress of having a titled spouse die without a will could have been avoided.

The problem could also have been avoided if the deceased common-law spouse had transferred the property into both names as joint tenants. This would mean that upon the death of one, the property would pass to the survivor.

Common law spouses are often reluctant to transfer properties, including principal residences into a common-law spouse’s name because it gives rights to the property that would not exist at law. In any such transfer, each of the parties should consider getting independent legal advice. But after receiving such advice, the decision is theirs.

Common-law spouses with a long-standing relationship, especially if they have children, should consider to whom they wish to leave their estate. Their intentions may not be carried out without a proper will.

If the couple are married, and it is their principal residence, the spouse on title cannot dispose of the property without the consent of the other spouse. But this does not mean that they should not have a will.

Disclaimer: This post is for informational purposes only and does not constitute, nor is it intended to be taken as legal advice.