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29

Alberta Cohabitation Agreements (Part 3): Wills and Estates matters

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Alberta Common Law Agreements

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to a cohabitation agreement in Alberta, you should seek professional assistance.

This is the third of a series of blog posts about cohabitation agreements in Alberta, Canada. In my first blog, I talked about what cohabitation agreements are and why they are used. I also started talking about what happens if you don’t have one. In my second blog, I looked at rights and obligations that arise in the context of the Primary Home, the Matrimonial Home (if the cohabiting couples end up marrying each other), and ownership and division of matrimonial property. In this blog, I’ll be discussing how being in a type of common law relationship (an adult interdependent relationship) can affect Wills and estates matters.

Wills and Estates

In previous blog, I talked about support issues and division and possession of property, but what about claims which an “adult interdependent partner” can make against the other partner’s estate (i.e. when that partner dies)? Well, under the Dependants Relief Act, RSA 2000, c D-10.5, an “adult interdependent partner” who relied financially on their partner can claim support from their deceased partner’s estate. This Act applies when a partner dies, with or without a will, and fails to make adequate provisions for the maintenance and support of his/her dependants. The Court can divide the deceased person’s estate in such a way as to ensure the deceased’s dependants, including “adult interdependent partners”, are provided with adequate support. For this reason, an “adult interdependent partner” may, through a Cohabitation Agreement, require the other partner to release them from claiming support under this Act.

It is also possible for adult interdependent partners to enter into an “adult interdependent partner agreement” in the form provided in the Regulations made under the under Adult Interdependent Relationships Act. In that agreement, the partners acknowledge (among other things) being over 16 years old, not married to each other, and living together in a relationship of interdependence. Importantly, if this agreement is entered into and a partner had a Will, then that Will becomes automatically REVOKED under the Wills Act – unless there is a declaration in the Will that it is made in contemplation of entering into an adult interdependent partner agreement: section 17.1(a) of the Wills Act.

Finally, if a person dies without a Will, the Intestate Succession Act outlines how their property is to be distributed: section 3 of that Act. If a person dies with a surviving adult interdependent partner BUT NO lineal descendants (children or grandchildren), then the estate goes to the surviving adult interdependent partner. If a person dies with a surviving adult interdependent partner AND lineal descendants:

  • If the total estate is worth less than $40,000, the surviving partner gets the entire estate;
  • If the estate is worth more than $40,000, the surviving partner gets the first $40,000. If there is one child, the surviving partner gets half of the remaining estate, if there is more than one child, the surviving partner gets 1/3 of the remaining estate; and
  • If a person dies with a spouse and an interdependent partner, the one who lived with the deceased at the time of death receives the entire estate. If neither were living with the deceased, the one who last lived with them takes the entire estate and other dependants, if any.

In this respect, a Cohabitation Agreement may be used to require an adult interdependent partner to release the other partner from claiming a share of their estate upon death under the Intestate Succession Act.

By the way, if you’re looking for a Cohabitation Agreement in Alberta that either terminates upon marriage or survives marriage (and becomes a prenuptial agreement or marriage contract), then you’ve come to the right place:

Cohabitation Agreement – Terminates Upon Marriage

This legal form can be used by non-married couples in Alberta who wish to avoid creating obligations through their cohabiting (i.e. living together) with each other. This particular cohabitation agreement waives support obligations and divides property according to legal ownership (in other words, what’s mine is mine; what’s yours is yours). This cohabitation agreement terminates when the parties get married to each other. If you want the cohabitation agreement to continue past marriage (i.e. continue to be valid and enforceable past marriage), then you can check out the cohabitation agreement below:

Cohabitation Agreement – Continues Past Marriage

This legal form can be used by non-married couples in Alberta who wish to avoid creating obligations through their cohabiting (i.e. living together) and their marriage to each other. It essentially becomes a Prenuptial Agreement or Marriage Contract when the parties marry each other. This particular cohabitation agreement waives support obligations and divides property according to legal ownership (in other words, what’s mine is mine; what’s yours is yours). This cohabitation agreement continues to be valid and enforceable past marriage.

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