Can an Adult Interdependent Partner Claim Against an Estate in Alberta?

You lived with your partner for years, shared a home and a life, and then found out you were not named in the will, or the share you received seems far too small. You may wonder whether being unmarried changes your rights.

In Alberta, the law has its own category for people in marriage-like relationships. This article explains how that category works for a maintenance claim against an estate, how the relationship is proven, and what deadlines to watch.

This article covers the law of Alberta.

Is a partner treated like a spouse for a maintenance claim?

Yes, in the sense that matters here. The family maintenance and support claim is created by Part 5, Division 2 of the Wills and Succession Act. It lets a court order that adequate provision be made from an estate when a will, or an intestacy, does not properly provide for a family member.

Spouses and adult interdependent partners are both listed as family members, so a partner has a claim in the same category as a spouse. Being a family member only gives you the right to apply. The court still decides whether and how much to award.

When deciding a claim, the court looks at factors including your relationship with the deceased, your age and health, your capacity to contribute to your own support, and any entitlement to support from another person. It also looks at the deceased's legal support obligations, the deceased's reasons for the gifts made (including written statements), and any agreement or waiver you signed. The court can still make an order despite a waiver or agreement to the contrary. The size and distribution of the estate, and any other matter the court considers relevant, also count.

How the relationship is proven

The test comes from the Adult Interdependent Relationships Act. Two people are adult interdependent partners if they have lived in a relationship of interdependence for a continuous period of at least 3 years, or for a period of some permanence if there is a child of the relationship by birth or adoption. They are also partners if they signed an adult interdependent partner agreement.

Evidence usually comes from everyday records. Think about what shows you were living as an interdependent couple:

• Shared leases, mortgage or utility records
• Joint accounts or shared household expenses
• Letters, cards and messages that show the nature of the relationship
• Statements from friends, family or neighbours
• A signed adult interdependent partner agreement, if there is one

Situations that can change the answer

Whether your facts fit these rules can be a close question. A lawyer can review your situation.

Deadlines and protecting the estate

An application must be commenced within 6 months after the grant of probate or administration is issued. The clock runs from the date of the grant, not the date of death. A court may allow a late application, but only for the part of the estate that has not yet been distributed.

In general, the personal representative may not distribute estate property for 6 months after the grant without consent or a court order, and reasonable advances are allowed. Once notice of your application is served on the personal representative, the estate is subject to any order made. An application is started by filing Form C 1 with an affidavit in Form C 2.

While a claim is pending, the court may protect or preserve estate assets or direct how the estate is administered. If the court makes an order, support may be an annual or other periodic amount, a lump sum, or a transfer of specified property, and the court may set conditions. An order takes effect as if it had been made immediately on the death.

What to do next

• Find out whether a grant of probate or administration has been issued, and its date
• Gather proof of the relationship, including any partner agreement
• Do not assume you have missed the deadline, since late claims are sometimes possible for undistributed property
• Ask a lawyer about your home occupancy rights, which may be separate from a maintenance claim
• Speak to a lawyer before any estate property is distributed

Surviving partners who are not on title and ordinarily lived in the family home may be entitled to possession for 90 days from the date of death, which the court can terminate, shorten or extend, but if the home passed to the owner by right of survivorship the period may not exceed 6 months.

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