Marriage vs. Common-Law Relationships: Wills and Powers of Attorney

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What is the difference between being married and living common-law?

It is becoming increasingly common for people to choose to live together without getting married.  If you are considering this option, it is important to know the legal differences between the two relationships.  In this post, Jeffrey Sun, a Fresh Legal intern, outlines two factors you should consider: Wills and Estate Planning, and Powers of Attorney.

There are also differences with respect to property division and support.  Read about those differences here.

Wills and Estate Planning

If you are legally married and subsequently divorce, any gifts to your former spouse are automatically revoked, falling into the residue of your estate if you have not provided for alternate beneficiaries. This only occurs upon divorce, not separation.  Getting married also revokes a Will unless it is specifically stated that it will not.

If you are common law, both the beginning and end of your relationship will have no effect upon your Will. Unless you specify that the Will is only valid while the relationship persists, then the Will and all gifts in it remain valid upon your separation and you must make a point of changing your Will in a way that reflects your post-separation desires.

During your relationship, if you do not have a Will (i.e. you die “intestate”), your spouse is treated differently if you are married or common-law. If you are intestate and married, your spouse will automatically receive a portion of your estate. If you are intestate and living common-law, your spouse will not receive a portion of your estate. If you are not married and wish to provide for your partner after you pass away, it is very important to have a Will.

Both married and common law spouses may apply for support under the Succession Law Reform Act if the deceased has not made adequate provision for their proper support in their Will.

Read More: The top ten things you should know about Wills.

Powers of Attorney

If you are separating from either a legal marriage or a common-law relationship, regardless, your powers of attorney (unless drafted so they are only valid during the relationship) are effective even after your separation. Unlike a Will, a power of attorney endures the separation/divorce.

Writing a power of attorney for personal care is an effective way of reordering the hierarchy of who can provide consent on your behalf to personal care measures (e.g., medical care). In the Health Care Consent Act, there is an established hierarchy of persons who can consent for you.

For purposes of health care consent, a married spouse and a common-law partner both have equal status in the hierarchy of decision makers. Spouses and partners are treated equally under the law and have an equal right to consent or refuse medical treatment on behalf of their spouse/partner.

Read More: Powers of Attorney for Personal Care