Does a Common-Law Partner Inherit With No Will in New Brunswick?

Losing a partner is hard enough without learning that the law may treat you differently from a married spouse. If your common-law partner died without a will, you may be wondering whether you inherit the home, the savings, or anything at all.

The short answer in New Brunswick is that you generally do not inherit automatically. There is, however, a route that some partners can use, and it comes with a short deadline. This article explains both so you know what to look at first.

This article covers the law of New Brunswick.

What happens when there is no will

When someone dies without a will, the estate is divided under the Devolution of Estates Act. Its intestacy rules refer only to a widow or widower and do not mention common-law partners, so an unmarried partner has no intestate share.

Instead, the estate goes to the relatives the Act lists. A surviving spouse with no children takes everything, but where there is no spouse or issue the estate goes to the father and mother equally, then brothers and sisters, then nephews and nieces, then next of kin of equal degree. Because a common-law partner is not a spouse for this purpose, the estate can pass to relatives even if you lived with the deceased for many years.

There has been talk of reforming intestacy rules to include common-law partners, but we have not confirmed that any such change has been enacted. Check the current law with a lawyer before relying on it.

Why married spouses are treated differently

Married spouses have an extra tool. Under the Marital Property Act, a surviving spouse may apply to the Court to have marital property divided in equal shares as against the deceased's estate, generally within four months of death. That time can be extended if the spouse did not know of the death or was prevented by circumstances beyond their control.

That claim is available to married spouses only. The Act defines a spouse as a married person, so it does not help a common-law partner.

The realistic route: a dependant's support claim

The Provision for Dependants Act lets a Court of King's Bench judge order maintenance and support out of the estate where a dependant's resources are insufficient, even against a will, and the judge may suspend administration of the estate. A dependant includes anyone who was a dependant of the deceased under the Family Law Act.

The Family Law Act applies the spousal support obligation to common-law partners in two situations:

• They cohabited continuously for not fewer than three years, with one substantially dependent on the other.
• They cohabited in a situation of some permanence and had a child together of whom they are the parents.

If you fit one of these, you may be able to apply to the Court of King's Bench. Whether a particular partner qualifies is fact-specific, and a judge may refuse an order if the applicant's character or conduct disentitles them. An application is made by notice of application.

The four-month deadline

No application under the Provision for Dependants Act may be made later than four months after the death. The clock runs from the date of death, not from the date probate or letters of administration are granted, so waiting for the estate to be opened can use up your time.

A judge may allow a later application for any part of the estate that is still undistributed, if that is just. Do not count on this. It is an exception, and it only reaches property that has not yet been distributed.

Practical steps to take now

You may not control the estate. Where a person dies wholly intestate, administration may be granted to the spouse, next of kin, or the next of kin's spouse as the Court considers proper. That is usually a relative, not an unmarried partner.

One way to stay informed is to lodge a caveat against a grant, which can be filed with the Registrar or a probate office clerk. No proceedings may be taken on the application without notice to the caveator. A caveat generally stays in force six months unless withdrawn, vacated or a notice of intent to contest is filed.

• Note the date of death and count four months from it right away.
• Gather proof of how long you lived together, shared finances and any child you had together.
• Collect records showing how much you depended on the deceased for support.
• Find out who has applied, or plans to apply, to administer the estate.
• Ask a lawyer promptly whether to file a support application or a caveat.

Frequently asked questions