Spousal Status in Estate Litigation: Who is a “Spouse” and Why Does it Matter?

A few weeks ago, I had an opportunity to speak to an audience of accountants about the issue of spousal status, and why it matters in estate litigation.  The following is a summary of my speaking notes from that presentation.

Spousal Status – Why Does it Matter?

A spouse has certain rights:

Wills Variation Rights:

Section 60 of the Wills, Estates and Succession Act (WESA“) provides that if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

While most wills variation cases in the past focused on whether a will was fair, and what variation would be just and adequate, there are now many cases which deal with the issue of standing – you must be able to establish that you are a spouse, or you cannot make a wills variation claim.

Right to receive on intestacy:

If there is no will, then WESA sets out how an estate is to be distributed on an intestacy.  If there is a spouse and no descendants, then everything goes to the spouse.  If there is a spouse and descendants, then the spouse gets the preferred share ($300,000 if all children common to both, $150,000 if not), then half to spouse, half between descendants.  If there is no spouse, then the estate goes to the descendants, or the next closest relative(s).

Clearly, whether or not a person is a “spouse” will have significant consequences on the distribution of an intestate estate.

Other Potential Claims:

“Spouses” have attempted to make other claims which seek to challenge estate plans which move assets out of the estate to avoid wills variation claims:

  • Breach of fiduciary duty – arguing that there is a duty to notify your spouse that you have not made provision in your estate plan, so they can decide whether to initiate family law proceedings – Volovsek v Donaldson, 2019 BCSC 182;
  • Good conscience constructive trust – equitable remedy.

While these claims have not yet been met with a high degree of success, the first hurdle is proving spousal status.

Who is a Spouse – Importance for Executors:

One of the tasks for an executor is to determine if a person qualifies as a “spouse” and if notice under s. 121 of the WESA must be given to that person.  This is important to start the wills variation limitation period, and to protect an executor who seeks to distribute estate assets.

Who is a Spouse?

How is a “spouse” defined in WESA:

  • Section 2 – “when a person is a spouse under this act”
    • Two persons are spouses of each other if they were both alive immediately before a relevant time (usually the date of death of one of them), and
      • They were married; or
      • They had lived with each other in a marriage-like relationship for at least two years.
    • Two persons cease being spouses of each other for the purposes of the act if:
      • In the case of marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise;
      • in the case of a marriage-like relationship, one or both persons terminate the relationship.
        • This is a determination that requires the court to consider both the expressed and implied intentions of each spouse and any available objective evidence.  The courts have interpreted this section broadly.
      • Two persons are not considered to have separated if, within one year after separation:
        • they begin to live together again and the primary purpose for doing so is to reconcile, and
        • they continue to live together for one or more periods, totaling at least 90 days.

So, there are number of potential issues when considering whether someone is a “spouse”:

  1. Whether there was a marriage-like relationship at all;
  2. If there was, whether it started more than two years before death;
  3. Whether someone terminated the relationship; and
  4. Whether there was a reconciliation, and if so whether it was long enough

There is also the potential for someone to have multiple spouses under the definition of “spouse.”

Whether a Marriage-Like Relationship Exists

There is no specific definition of whether a marriage-like relationship exists.  The precise definitions of the past are no longer valid in our changing world.  Such relationships are no longer defined by financial dependence, sexual relationships or the mingling of property and finances.  There is no “checklist” of characteristics that will invariably be found in all marriages.

The Courts in British Columbia often refer to the following passage from Yakiwchuk v. Oaks 2003 SKQB 124:

Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property- in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.

The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

When considering whether two persons are “spouses” the court will consider:

  • The parties’ intentions, particularly their expectation of whether the relationship would be lengthy and of indeterminate duration:
  • Objective evidence of the parties’ lifestyle and interactions supporting a finding that their interactions “closely resembled those typical of married couples;
  • Whether the parties treat themselves as a family unit;
  • Whether cohabitation was coupled with romantic and sexual relations;
  • Evidence of emotional interdependence, mutual commitment, and attachment;
  • Whether the parties co-mingled assets and shared expenses; and
  • Whether the parties treated themselves as single or cohabiting for income tax purposes 

Application of Spousal Status Considerations:

Very often, we are looking at cases where the deceased’s children (or siblings, or other family members) are denying that someone was a spouse.  We see wildly different versions of events.  The claimant says they were a spouse.  The children or other persons opposing may say that the alleged “spouse” was, in fact:

  • Previously in a relationship with the deceased, but the parties broke up, an ex-partner;
  • Casually dating, may have been one of several non-exclusive partners (the deceased said “would never marry again”);
  • Roommate;
  • Caregiver;
  • Friend; or
  • Complete stranger.

A person on the cusp of potentially being a “spouse” may take a shot at a claim, with the knowledge that most claims settle.

Evidence of Spousal Status:

The Courts want evidence of intentions AND objective evidence.  This may include:

  1. Evidence of the surviving “spouse” (concern it is self serving);
  2. Evidence of Opposing parties (again, concern it is self serving)
  3. Documents – tax returns, mail, next of kin, contact forms, direct beneficiary designations;
  4. Other third party witnesses – observed the relationship, statements made to them about relationship.  This may include friends, as well as professionals – solicitor/accountant/banker.

Available Claims if Not a “Spouse”

There are fewer available claims if a person is not a “spouse,” but there are still some remedies.  The claimant does not receive on an intestacy and has no wills variation rights.  However, there may be claims in unjust enrichment or promissory estoppel, claims based on ideas of unfairness and inequity.

What I’m Reading: Interesting Estate Litigation Articles for October 2022

The following is a round-up of noteworthy articles published this month on estate litigation and related issues:

  1. Stan Rule at Sabey Rule writes about a recent B.C. decision which considers whether an interest in a discretionary trust is “family property” that should be divided in a family law action: Rule of Law: Cottrell v. Cottrell (rulelaw.blogspot.com)
  2. Artur Adamian at Hull & Hull LLP (Ontario) posts about an Ontario case which awarded interest to a beneficiary when the administration of the estate took longer than the “executor’s year”: https://hullandhull.com/Knowledge/2022/10/interest-payable-when-the-executors-year-ends/
  3. Artur Adamian also posted about a recent Ontario decision in which a residual beneficiary was ordered to pay occupational rent for occupying estate property: H&H | No Such Thing as Free Rent (hullandhull.com)
  4. Oliver O’Brien at WEL Partners (Toronto) comments on an Ontario decision which held that BMO Nesbitt Burns did not have a duty to one spouse to disclose that the other spouse removed her as a designated beneficiary: https://welpartners.com/blog/2022/10/corroboration-and-material-facts-a-look-at-the-recent-case-of-fair-v-bmo-nesbitt-burns-inc/
  5. Elaine Yu at de Vries Litigation LLP (Ontario) writes about a case dealing with a familiar dispute: two siblings who cannot get along and act together for their parent pursuant to a power of attorney: https://welpartners.com/blog/2022/10/corroboration-and-material-facts-a-look-at-the-recent-case-of-fair-v-bmo-nesbitt-burns-inc/
  6. Robertson Stomberg (Saskatchewan) posts about a recent Saskatchewan court decision in which a challenge to the validity of a will (on the basis of lack of capacity or coercion) was summarily dismissed as there was no genuine issue raised: https://skestatelaw.ca/2022/11/01/saskatchewan-estate-litigation-update-bell-v-bell-2022-skqb-198/

Happy reading!