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

Losing a partner is hard enough without worrying about whether the law recognizes your relationship. In Manitoba, common-law partners are included in the rules for people who die without a will, though there are conditions you must meet.

This article explains who counts as a common-law partner, what share you get, and what other rights may be open to you. A lawyer can confirm how these rules apply to your facts.

This article covers the law of Manitoba.

Who counts as a common-law partner

Under The Intestate Succession Act, a common-law partner is someone who registered a common-law relationship with the deceased under s. 13.1 of The Vital Statistics Act, or who lived with the deceased in a conjugal relationship for at least three years, or at least one year if they are together the parents of a child.

• Registered relationship: no minimum time is stated in the definition.
• Unregistered relationship: three years of conjugal cohabitation.
• Unregistered with a child together: one year of conjugal cohabitation.

What share you receive

A common-law partner has the same intestate share as a spouse. If the deceased left no issue (descendants, such as children or grandchildren), the partner takes the entire estate. The partner also takes everything if all of the deceased's issue are also issue of the partner.

If some of the deceased's children are not the partner's, the partner takes the greater of $50,000 or one-half of the estate, plus one-half of the remainder, and the rest goes to the children. The government describes this as at least 75% to the partner, and it adds that the survivor takes all if the estate is $50,000 or less.

Whatever the partner does not take goes first to the deceased's children and more remote descendants. If there is no surviving issue, it goes to the parents in equal shares, or to the surviving parent. With no children and no parent, it goes to the siblings and to nieces and nephews through a deceased sibling, and then to grandparents, their issue and great-grandparents. If there is no successor under the Act, the estate goes to the Crown.

A person who does not survive the deceased by 15 days, not counting the day of death of each, is treated as having died first. That rule does not apply if it would send the estate to the Crown.

When separation cancels the share

A surviving common-law partner is treated as having died first in several situations: a registered relationship was dissolved by registration before death; for an unregistered relationship, three years have passed since the couple began living separate and apart; an accounting or equalization application was made; or the couple divided their property.

If the deceased had a spouse and one or more common-law partners, the most recent relationship takes priority for intestate purposes. That does not stop the other partners from applying under The Family Property Act.

If the deceased did leave a will, different rules apply. After the end of a common-law relationship, by registered dissolution or three years living separate and apart, gifts in the will to the former partner are revoked and the will is read as if that person died first, unless the will shows a contrary intention. A change in circumstances alone does not otherwise revoke a will.

Other claims you may have

Common-law partners are treated equally with married spouses in the accounting and equalization rules on death under The Family Property Act. This is a separate claim from inheriting, and the survivor can choose between taking under a will and making the equalization claim.

Only the survivor may apply for the accounting and equalization, not the personal representative. The time limit is six months from the grant of probate or letters of administration. The court may extend the period in limited situations, such as when the survivor did not learn of the death in time.

The equalization payment is reduced by any share the survivor takes under The Intestate Succession Act. A survivor who gets no intestate share because of separation may still apply if property matters were not already settled, and may also have rights under The Homesteads Act.

Assets are valued at the date of death if the couple were living together then, and otherwise at the date of last cohabitation, and funeral and testamentary expenses are left out of the calculation.

What to do next

• Gather proof of your relationship, such as a registration or evidence of how long you lived together.
• Find out whether anyone has applied for probate or letters of administration, since the six-month clock runs from the grant.
• Keep any agreement you and your partner signed. Part IV of The Family Property Act does not apply if you divided your assets before death under an agreement, but an earlier agreement does not bar your rights unless you specifically waived or released them.
• Watch for the notice the personal representative must serve on you within one month after the grant.
• Get legal advice early, because deadlines apply.

Frequently asked questions