When will a common law spouse inherit the estate?

  • If there is a will it governs, although a common law spouse may apply for variation if the bequest is not big enough
  • If there is no will, a common law spouse will inherit if she can prove they lived together in a marriage-like relationship for at least two years before the death

In Souraya v. Kinch the girlfriend of the deceased claimed she was a common law spouse.  The judge said that the test focussed on the intention of the parties to live in a marriage-like relationship, i.e. a relationship of psychological and emotional union that one associates with marriage.  The court will consider factors like:

  • Shelter – the sleeping arrangements, whether they lived under one roof, and if anybody else lived there?
  • Sexual and personal behaviour – did they have sexual relations, were they faithful, what were their feeling towards each other, did they communicate on a personal level, did they eat together, did they assist each other with problems or during illness, did they buy gifts for each other?
  • Services – what did they do for meal preparation, washing/mending clothes, shopping, household maintenance or other domestic services?
  • Social – did they participate together/separately in neighbourhood and community activities, what was their relationship and conduct towards members of the other’s family, and how did those families treat them?
  • Societal – what was the attitude and conduct of the community towards each of them and as a couple?
  • Economic support – what was the arrangement regarding the necessaries of life, the acquisition and ownership of property?
  • Children – what was their attitude and conduct concerning children?

However, none of these factors is determinative.  Each case is unique.

In this case, the judge said that the girlfriend was not a common law spouse.  They had a warm and loving relationship and lived together, for the most part, for the last two years of the boyfriend’s life.  However, cohabitation is not enough.  He had a separate residence with a separate family and personal life.  They shared no financial commitments.  They did not express any private or public personal commitments to each other. They lacked a long-term commitment to each other. 

Each case is unique, but we can help you determine if the legal test has been passed.  Contact us.

Read the case:  Souraya v. Kinch