Do Common-Law Partners Inherit in Alberta Without a Will?

Many couples in Alberta live together for years without marrying and call themselves common-law. When one partner dies without a will, the survivor often assumes they will inherit. Whether they do depends on a legal test that is different from the everyday meaning of common-law.

This article explains how the test works, who can qualify, and what happens if you do not.

This article covers the law of Alberta.

Living together is not enough on its own

The intestacy rules in Alberta speak of a spouse or an adult interdependent partner, and the second term has the meaning given in the Adult Interdependent Relationships Act. That Act defines a relationship of interdependence as one outside marriage in which two people share one another's lives, are emotionally committed to one another, and function as an economic and domestic unit. Living together alone is not the test.

A partner who qualifies has the same intestacy entitlements as a surviving spouse.

The three ways to qualify

If the relationship is questioned in court proceedings, the person claiming to be the partner has the onus of proving it.

What you would receive if you qualify

• No descendants: the whole intestate estate goes to the partner.
• All descendants are also the partner's: the partner takes the entire intestate estate.
• Some descendants are not the partner's: the partner takes the greater of $150 000 or 50% of the net value of the estate, with the remainder going to the descendants.

On a net estate of $200,000 with one child from a prior relationship, that is $150,000 to the partner and $50,000 to the child.

These rules apply to deaths on or after February 1, 2012, and the estate is measured by its net value after debts, charges, and funeral and administration expenses. The $150 000 figure is set by the Preferential Share (Intestate Estates) Regulation, which expires on December 31, 2031, so the figure may be reviewed or re-made by then.

Situations that can stop you qualifying

• Paid care: no relationship of interdependence exists where one person provides the other domestic support and personal care for a fee or other consideration.
• Married to someone else: a married person cannot become an adult interdependent partner while living with his or her spouse, and a person cannot have more than one partner at a time.
• Relatives: people related by blood or adoption can become partners only in the limited ways the Act allows.
• A partnership that had ended: living separate and apart for more than one year with intent that the relationship not continue, or a written agreement to live apart, ends partner status, among other events. A single return to living together of not more than 90 days, mainly to reconcile, does not interrupt a separation.
• A spouse and a partner both: if the deceased left both a spouse and an adult interdependent partner, the estate is divided between them. A person who takes a share as a partner cannot also take a second share in another capacity.

If you do not qualify

An unmarried partner who is not an adult interdependent partner has no intestacy share under Part 3 of the Wills and Succession Act. If there is no spouse, partner or descendant, the estate passes to relatives by blood or adoption, and relatives by marriage are not included. The order runs from the parents, to siblings, nieces and nephews, then grandparents and their descendants, and then great-grandparents and their descendants.

Where descendants inherit, the estate is divided into one share for each surviving child and one for each deceased child who left descendants.

Whether you qualify can turn on detailed facts, and there may be other routes to a claim depending on your situation, so a lawyer can confirm your options.

What to do next

• Write down when you began living together and whether there were any breaks.
• Collect proof of shared finances and household life.
• Find any signed partner agreement and any birth or adoption records for your children.
• Do not move or sell estate property until you know who has authority to act.
• Get legal advice early, especially if the family disputes your status.

Only the personal representative named in a Court grant has authority to act for the estate once it issues. People entitled in an intestacy may nominate someone to administer the estate.

Where there is no will, the order of priority to apply for a grant starts with the surviving spouse or adult interdependent partner, followed by a child.

Frequently asked questions