Do Common-Law Partners Inherit Without a Will in Newfoundland and Labrador

When someone dies without a will and you were their common-law partner, it is natural to ask whether you inherit anything. The answer is not as simple as it is for a married spouse, and it is worth understanding the difference before you assume either way.

This article explains how the intestacy rules divide an estate, how a legal spouse is treated differently, and what other routes a surviving partner may have. It is general information, not advice on your situation.

This article covers the law of Newfoundland and Labrador.

How an estate is divided when there is no will

When there is no will, the Intestate Succession Act decides who receives the estate. The shares for a spouse and children are set out below.

If there is no spouse or issue, the estate goes to parents, then to brothers and sisters, then to nephews and nieces, then to next-of-kin of equal degree.

Where a common-law partner fits

The shares above are written in terms of a spouse. Whether an unmarried partner counts as a spouse for inheritance on intestacy is a point you should not assume. It is worth confirming with a lawyer before you rely on it, because the answer decides whether you receive a share as of right.

The same caution applies to who may administer the estate. The order of priority to apply for administration begins with the spouse, then children, parents, siblings, grandparents, then creditors and the Crown, subject to the judge's discretion. A person resident in the province is preferred over one with equal right unless a judge orders otherwise.

How a legal spouse is treated differently

The Family Law Act has its own definition of spouse. It covers people married to each other, people in a voidable marriage that has not been voided, and people who went through a good-faith but void form of marriage and are cohabiting or cohabited within the preceding year. That definition does not mention unmarried cohabiting partners.

• A surviving spouse's Family Law Act rights are in addition to rights on intestacy or under a will.
• A surviving spouse may apply to divide matrimonial assets equally within 1 year after the first spouse's death.
• That 1-year deadline can be extended on reasonable grounds, good-faith delay and no substantial prejudice.
• If spouses held the matrimonial home as joint tenants, the survivor takes it by survivorship without probate or estate administration.

Because these rights are tied to the definition of spouse, a common-law partner should ask a lawyer whether any of them apply.

A claim under the Family Relief Act

The Family Relief Act lets a dependant apply where a will does not make adequate provision for maintenance and support, or where an intestate share is inadequate. Dependants include a spouse, a cohabiting partner or a child.

A cohabiting partner needs continuous conjugal cohabitation outside marriage for at least 2 years, or at least 1 year if the two of you are together the biological or adoptive parents of a child.

• The application must be made within 6 months after the grant, though a judge may allow it for any undistributed part of the estate.
• The judge considers matters such as conduct, other support, your relationship with the deceased, your finances, other dependants' claims, services you provided and your contributions.
• The court can order provision, suspend administration, and stop distribution once notice is served.
• An appeal lies to the Court of Appeal within 30 days.

Assets that may pass outside the estate

Some property does not form part of the estate at all, so intestacy rules do not govern it.

• Life insurance with a designated beneficiary is not part of the estate and is not subject to the insured's creditors.
• If the designation is the insured's heirs, next of kin or estate, it is treated as a designation of the personal representative, so the money is paid to the estate.
• Under the Pension Plans Designation of Beneficiaries Act, a signed written designation lets an employer plan pay the designated person, who can enforce payment after the participant's death.

Check any policy or pension paperwork for a named beneficiary. Whether other accounts or investments have a named beneficiary depends on the documents.

What to do next

• Note the date any grant is issued, because the Family Relief Act clock runs from the grant.
• Find out whether anyone has applied for administration, and who, since a notice of application is posted at the Registry Office.
• Gather proof of how long you lived together and any child you share, since cohabitation length matters.
• Collect insurance, pension and bank paperwork showing named beneficiaries.
• Speak to a lawyer early about whether you count as a spouse for intestacy and what claims you can bring.

There is no time limit to apply for administration, and a lawyer is not required to do so. Even so, the shorter deadlines for claims make early advice sensible.

Frequently asked questions