Spousal rights in estate planning
- Sharing that the definition of “spouse” in family law is the same as for estate matters – with rights arising after two years of living in a marriage-like relationship
- Sharing that if your will fails to make adequate provision for your spouse, the court can redistribute your estate.
- Explaining that the fairness of cohabitation and prenuptial agreements changes the longer the relationship lasts, clauses prohibiting actions against the other person’s estate are unenforceable, and if the agreement is not fair at the time of death it won’t be enforced.
- Describing additional rights from the Land (Spouse Protection) Act, that allows a charge to be registered against title without you knowing, and entitling your spouse to live in your house until they die.
Shacking up comes with serious consequences.
A clock starts ticking when two people in a relationship move in together.
I think that most folks are aware of family law consequences of living together for two or more years in a marriage-like relationship. You become “spouses”, the same as if you walked down the isle, with rights and obligations that come with that.
There are also consequences in the estate context.
The same definition of “spouses” is contained within the Wills, Estates and Succession Act.
Paraphrasing from section 60 of that Act, if you die leaving a will that fails to make adequate provision for the proper maintenance and support of your spouse, the court can redistribute your estate to accomplish what, in the court’s opinion, is adequate, just and equitable.
Do you think you’ve got your ducks in a row because you had a cohabitation or prenuptial agreement put in place?
Maybe you’re right. But maybe not.
Many couples enter into a written agreement, agreeing that what you brought into the relationship is yours, what they brought into the relationship is theirs, and neither of you will sue the other’s estate.
Those agreements are not cheap, unless you pulled something off the internet in which case they might not be worth the paper they’re printed on.
However much you invested to ensure you can pass your wealth onto your kids instead of your new partner, those agreements are seldom “one and done”.
An agreement that was fair when you first started living together will likely become unfair over time, the unfairness becoming greater and greater the longer you live together.
And provisions agreeing that you won’t sue the other’s estate are not enforceable.
A court considering whether you have made adequate provision for the proper maintenance and support of your spouse will not uphold an unfair cohabitation or prenuptial agreement.
There’s another, lesser known, piece of legislation that comes into play after the ticking clock reaches two years. It’s called the Land (Spouse Protection) Act.
Let’s say you’re the sole owner of your house. Your romantic partner moves in with you. They don’t contribute a cent to repairs, maintenance, property taxes or any other expenses related to the home.
After two years of living in that home, they automatically become your “spouse” under that Act, entitling them to register a charge against title.
They don’t have to tell you about it and you won’t be notified.
If you die before they do, they will be entitled to continue living in your home for the rest of their life, regardless of what your will says.
It’s easy to register the charge against title. There is a simple form of Affidavit in the regulations where they must swear that you are spouses, and that you are the sole registered owner of a property where the two of you reside.
In circumstances where a home is the bulk of an estate, your spouse’s right to continue living there for the rest of their life can significantly impact what you’re leaving to your beneficiaries.
Is reading this making you nervous?
You can take steps to protect yourself from the ticking of a clock having unintended consequences.
Cohabitation and prenuptial agreements can include clauses that prohibit filing a Land (Spouse Protection) Act charge.
To ensure enforceability, those agreements should be reviewed periodically and updated as necessary to ensure ongoing fairness over the passage of time.
An agreement with an aligned will that is fair on your death will not be varied.
Does the thought of dusting off a cohabitation or prenuptial agreement and reviewing it with your spouse sound uncomfortable as all heck? Perhaps because maintaining a “what’s mine is mine” position after you’ve been sharing your life together for a period of time no longer fits.
There are additional legal tools that can be put in place to help protect your interests as well.
Properly wrestling with these issues requires expertise in both family law as well as estate planning. I don’t have expertise in family law, nor do I have expertise in some more involved estate planning tools, but I can refer you to other lawyers who do.
