Rights of a surviving spouse on death
The question of whether or not two individuals are spouses is no longer a simple one. It can be even more difficult if one of the individuals passes away; it is further complicated, if the individual died without a will.
It used to be easy to determine whether two people were spouses – they had a marriage certificate and lived together. Today, relationships come in all shapes and sizes. Just because two individuals did not have a “traditional marriage” does not mean they were not spouses in the eyes of the law.
If a person dies without a will, the estate is distributed in accordance with the Wills, Estates and Succession Act (“WESA”). Under WESA, the surviving spouse is entitled to a share, if not all, of the deceased spouse’s estate. As such, it is important to determine whether or not two people are spouses. This is also important as others may be entitled to the estate if the deceased was found to not have a spouse.
Under WESA two people are spouses if “they were married to each other” or “they had lived with each other in a marriage-like relationship for at least two years.” What the courts consider a “marriage-like relationship” is no longer limited to two people living under the same roof as a couple with everything held jointly and all expenses shared. Two individuals may have separate residences and separate bank accounts and be considered spouses. On the other hand, two people may live together and not be considered spouses.
The best way to ensure your loved ones receive what you want on your passing is to have a will that has been prepared by an estate planning lawyer. If your loved one passed away without a will and you are unsure of your rights as a surviving spouse, or as a possible intestate successor, you should seek legal advice. We are here to help.