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NEW DEFINITION OF SPOUSE MAY
AFFECT YOUR ESTATE
(November 2000)
by Del Elgersma
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.
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