Common Law Spouses and Estate Planning

Many couples are choosing to become common law spouses before or instead of getting married, and the number of common law couples in Canada continues to grow. Becoming a common law spouse may impact your estate in a number of ways and should cause you to take another look at your overall estate plan.

In Saskatchewan, common law spouses have essentially the same legal rights and obligations as married spouses. Unlike other provinces, common law spouses in Saskatchewan do not need to register their relationship or take any steps to obtain the same legal rights as married spouses.

One way becoming common law may impact your estate is with respect to your Will.  The law in Saskatchewan is that your Will is automatically invalid when you become a common law spouse. If you have a Will at the time you move in with your significant other and you then live together in a marriage like relationship for 2 years, your existing Will is invalid and you need to take steps to have a new Will prepared.  Without a new and valid Will, the majority of your assets will go to your common law spouse on your death.

A new and valid Will is especially important for people who have children from a prior relationship who they want to inherit their estate or for people who have built up significant assets which they want divided among immediate family or specific charities.

Even with a new and valid Will, your common law spouse may have a claim to a portion of your estate as a dependent and it may be best for you to get a Cohabitation Agreement in addition to a new Will.  You may want a Cohabitation Agreement if:

  1. You want to leave your entire estate to minor children in your Will;
  2. You want to leave certain property to adult children in your Will;
  3. You want to protect assets in the event the relationship ends (e.g. assets brought into the relationship, future inheritances, or retirement savings and pensions);  or
  4. You want to avoid spousal support payments in the event the relationship ends.

In a Cohabitation Agreement, common law spouses may agree to give up any claim to spousal support, assets brought in to the relationship, and each other’s estates. For a Cohabitation Agreement to be valid in Saskatchewan, each spouse needs to have independent legal advice.  A Cohabitation Agreement should also include a list of each spouse’s assets so both parties are aware of what they are agreeing to when giving up their rights as common law spouses.

If you are about to become or thinking of becoming a common law spouse, it is best to consult with a legal expert to make sure you have an estate plan which best fits your personal circumstances.