Why common-law marriage is a myth

Often times we end up writing articles that try and explain the kind of mess you can get into if you don’t have a Will. So often, the complexities of the law can be avoided completely if you write a Last Will and Testament. Common-law marriage is a case in point.

According to some statistics, about one in six people co-habit without getting married; clearly there are many reasons for this which we won’t get into, but if ever there was a case for preparing a Will, a common-law marriage is it. I will now attempt to distill the vagaries of the law across different jurisdictions.

In the UK, the law is simple and unequivocal;  ‘common law marriage’ has no recognition in law and unless you have both made Wills neither of you will have any automatic rights to inherit from the other. The intestacy rules dictate what happens if you die without a valid Will and they make no provision whatsoever for a ‘partner’; it is only a ‘spouse’ who will automatically inherit. You may have co-habitated for 50 years, but in the eyes of the law, you are complete strangers if one of you dies without a Will (you may be able to make some claim based on a “dependency”, but this would require a challenge to the default distribution of the estate). Incidentally, if you do inherit money or property from an unmarried partner, you are not exempt from paying inheritance tax, as married couples are.

In Canada, it is slightly more complicated. British Columbia, Saskatchewan, Manitoba, and the Territories do recognize common-law relationships, however, Ontario, Alberta, New Brunswick, Nova Scotia, Newfoundland and Labrador, and PEI do not recognize common-law partnerships and surviving partners will face the same challenges as those described for the UK (above).

The US also has very complicated State specific laws which I can’t go into here. I have spent literally hours looking through State laws to find a good explanation that would fit into this blog, but it cannot be done. In summary there is a common misperception that if you live together for a certain length of time (seven years is what many people believe), you are common-law married. This is not true anywhere in the United States. There are 11 states that recognize the existence of a common-law marriage, and this allows the surviving partner to inherit if there is no Will. For the other States there is no protection for surviving common-law partners.

In short, if you are cohabiting, in a “domestic partnership”, living in a putative Marriage (one that is simply implied) or a common-law situation, you absolutely must write your Will to protect the rights of your surviving partner. You should also prepare a Power of Attorney and Living Will because depending on your jurisdiction, your common-law spouse may have no rights if you were ever to be incapacitated.

Fortunately, a Last Will and Testament, Financial Power of Attorney, Healthcare Power of Attorney, Living Will and Advance Directives can all be created through the online tools at www.legalwills.ca , www.uslegalwills.com and www.legalwills.co.uk. The whole process takes no more than a few minutes and can protect the rights of your partner. It is a serious issue that should not be put-off.

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Same-sex marriage and the Last Will and Testament

Last week, the State of New York passed same-sex marriage legislation; from July 24th 2011, same-sex couples will enjoy the same rights as those in Connecticut, Iowa, Massachusetts, New Hampshire and Vermont. In Canada, all Provinces and Territories recognize same-sex marriage under the 2005 Civil Marriage Act which defines marriage as “”the lawful union of two persons to the exclusion of all others”. In the UK same-sex couples can be joined in a “Civil union” or “registered partnership”.

Why is this of interest to the legalwills blog? well, the most significant implication is for those who choose not to write a Will. There were many cases in the past of a person dying intestate (without a Will) having lived for decades with a life partner. The law used to say that only married partners could have a claim on the estate, and until recently, same-sex couples had no claim (common-law partners still have no claim in most jurisdictions). The “civil union” in the UK and other same-sex marriage legislation gives rights to survivors when no Will has been written. Of course, at LegalWills we would have just advised everybody to write a Will in 30 minutes and save their surviving partner the anguish, but sadly, in many cases people procrastinate when it comes to putting their estate planning affairs in order.

But same-sex marriage legislation also provides some rights for partners who have been left out of a Will. In most jurisdictions it is not possible to completely disinherit one’s spouse, and this now extends to same-sex relationships where applicable.

There are also clear implications for same-sex couples with children. In a Last Will and Testament a guardian for the care of minor children is named, but this only comes into effect when both parents are unable to provide care. With same-sex marriage the parental rights can now extend to both parents.

The recognition of civil unions also has implications for Powers of Attorney and Living Will forms – if you are ever unable to speak for yourself, for example, if you were in a coma. One’s married partner is usually the first point of contact for physicians who need to consult with a family member on important healthcare decisions.

The law is still quite varied across different jurisdictions and the discussion is probably worthy of a Masters thesis rather than a blog post. However, many basic rules still apply for same-sex couples;

  1. Make sure that you have a Will, Power of Attorney and Living Will in place.
  2. If you planning to disinherit your married partner; seek legal advice as the wishes that you have outlined in your Will may not be enforceable.
  3. If you do get married or divorced, make sure that you update all of your estate planning documents. Marriage typically revokes (cancels) any existing Will.

This is a very rapidly changing legal landscape, and so if you read this in a few months, it may be out of date. If you have any comments to add, please feel free. I am happy to provide any clarifications or corrections.

Your personal directives…

There have been a couple of articles in the news this week related to the importance of preparing one’s own personal directives. These have many names including “advance directives” or “living wills” but in essence it is communicating the type of healthcare that you wish to receive if you unable to speak for yourself or in an irreversible vegetative state.

The Edmonton Journal had an article about the Legal Resource Centre of Alberta who educate the public on the importance of drawing up a Power of Attorney, personal directive and Last Will and Testament. They make some great points in the interview; “It’s going to take some time and effort to think about your beliefs, gather the information, meet with your loved ones and write the documents, but it can save enormous grief… Your partner may not have the legal authority to make the decisions. If parents don’t like their child’s spouse, who would make decisions if there’s a family conflict?…There is no big automatic legal right, and you do need these documents in place.”

It really is a legal quagmire and although you may consider it unlikely, the benefit of having these documents in place by far outweighs the inconvenience of creating them (about 30 minutes of your time at LegalWills and $10.95 for a Living Will including personal directives and a healthcare Power of Attorney).

But really, what are the consequences of not putting these documents in place? well this morning the news in Toronto was full of the tragic story of Hassan Rasouli. The headline is scary enough; Family goes to court to keep dad alive: ‘He talks to us with his eyes’ But the details of the story are heartbreaking – “His doctors at Sunnybrook say they’ve done all they can do for Rasouli, that he is in a permanent vegetative state and that their medical judgment compels them to remove the ventilation keeping him alive.” but “Parichehr Salasel, Rasouli’s wife and substitute decision-maker… a doctor in Iran prior to the family’s arrival in Canada a year ago, believes he is improving and that removal from the ventilator would breach his Muslim beliefs.”

This is of course not an unusual situation; the article is a stark reminder of the Terri Schiavo case about 10 years ago, and the law changes that were put in place as a result.

It’s a terrible situation and the law (in Canada at least) appears to be very unclear as to who has the right to determine whether this man should live or die. The complex ethical arguments are included in the main article and so I am not going to repeat them here, but the real lesson is that this case is with the Ontario Court of Appeal and a judge will make this life and death decision.

This situation will always be tragic, but creating a detailed personal directive can give you a voice in this argument. If we knew what Mr Rasouli would have wanted, then his views would surely carry a great deal of influence in this decision. Any time a family is left with a court battle on their hands against the healthcare and legal communities, it is a desperately difficult ordeal.

So, create a Healthcare Power of Attorney, Personal Directive (Living Will) today, and spare your family some very difficult decisions. You don’t need the services of a lawyer  or solicitor to do this, you can do it in a few minutes at www.legalwills.ca, www.uslegalwills.com and www.legalwills.co.uk.