Does a Common-Law Partner Inherit Without a Will in New Brunswick?

You may have lived with your partner for years, shared a home and a life, and then lost them without a will in place. Many people assume the law treats a long-term partner the same as a married spouse. In New Brunswick, the answer on intestacy is more limited.

This article explains how the intestacy rules treat common-law partners, who inherits instead, and what other options may exist. Time limits are short, so it helps to understand them early and speak with a lawyer about your situation.

This article covers the law of New Brunswick.

The short answer: no automatic share

When someone dies without a will, the Devolution of Estates Act decides who inherits. Its intestacy provisions refer only to a widow or widower and do not mention common-law partners, so an unmarried partner has no intestate share. The Marital Property Act also defines a spouse as a married person.

This can feel harsh, particularly if you lived together for decades. It does not mean you have no options, but those options work differently from an inheritance. Intestacy rules can also be reformed over time, so it is worth confirming current law with a lawyer.

Who inherits instead

If there is no inheritance for the partner, the estate goes to the relatives listed in sections 22 to 28 of the Devolution of Estates Act. Where there is no spouse and no children or other issue, the order is as follows.

• The deceased's father and mother equally.
• Then brothers and sisters.
• Then nephews and nieces.
• Then next of kin of equal degree.

If the deceased had children, they are the first in line among these relatives rather than the parents and siblings. Half-blood relatives inherit equally with whole-blood relatives. Who exactly inherits depends on the family tree, which is worth mapping out carefully.

Your options as a surviving partner

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

A common-law partner may qualify in two situations under the Family Law Act:

• You cohabited continuously for not fewer than three years and one of you was substantially dependent on the other.
• You cohabited in a situation of some permanence and had a child together of whom you are both parents.

Because the Provision for Dependants Act uses the Family Law Act definition, a partner who fits one of those descriptions may apply to the Court of King's Bench within the time limit. Whether you qualify is fact-specific. A judge may also refuse an order if the applicant's character or conduct disentitles them.

By contrast, the right of a surviving spouse to ask for marital property to be divided in equal shares against the estate is available to married spouses only.

Watch 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 when probate or administration is granted. A judge may allow a later application for any part of the estate still undistributed if it is just, but you should not count on that.

Administration of an intestate estate may be granted to the spouse, next-of-kin or the next-of-kin's spouse as the Court considers proper. Applications go to the probate office for the judicial district where the deceased lived or where their property was located. If you want to take part in the process, or fear that assets will be distributed to others, that is a reason to speak with a lawyer promptly.

What to do next

• Note the date of death and mark four months from that date on your calendar.
• Gather proof of how long you lived together, shared expenses and any dependence on your partner.
• Gather records of any child you had together.
• Find out whether a will might exist before assuming there is none.
• Order a death certificate if you need one; a person who had a relationship with the deceased can apply through Vital Statistics.
• Speak with a lawyer early about a support claim and about how the home and accounts were held.

Frequently asked questions