In the past 10 years, the number of common-law couples in Canada has grown at something like 4 times the rate of married couples. So it’s not surprising to lawyers, but it is surprising to ’normal’ people, that common-law relationships are not the same as marriage.

When it comes to working with a lawyer to draft a Will or estate plan, common-law couples can bring unique challenges to the table. Anticipating, explaining and addressing these will help both you and your lawyer through the process with as little misunderstanding between you and as little conflict between the client and family as possible.

They don’t always understand why a Will matters so much for common-law couples

Common-law partners, even those in very long-term relationships, don’t always understand that when one spouse dies intestate, they are not accorded the same rights as a married spouse.

In Ontario, a widowed, married spouse receives a $200,000 preferential share and, as closest relative, the likely appointment as an estate trustee – none of which applies to a common-law partner.

Common-law partners may not automatically think of the longer-term

Research suggests that common-law couples don’t think of their relationships in the same ‘til death do us part’ way that married couples tend to.  This may mean that one of the partners just isn’t as invested or engaged in the process of Will and estate planning – and that can be a huge obstacle to completion.

Understanding their pre-cohabitation lives is crucial

Many common-law couples come to the relationship with children, ex-spouses, assets or obligations, all of which can complicate the process of drafting a Will or estate plan. A new common-law relationship does not revoke an existing Will. This can result in some unfortunate surprises for the widowed, common-law partner.

In Dagg v. Cameron Estate, 2017 ONCA 366, for example, the court found that insurance policies used to ‘secure’ support obligations for a child of a previous marriage could be clawed back into an estate for the purposes of support of a child from a subsequent common-law relationship.

The Court of Appeal overturned that, saying that the new mother of the deceased’s child was not viewed as a creditor of the estate in order to overcome the presumptions in the Law. While this was considered a ‘good’ decision in terms of the law, it reinforces the need for common-law partners to have Wills and an estate plan in place, especially when there are children involved.

It can get emotional

A big but often overlooked issue when dealing with common-law partners is the emotional baggage that some of their ‘old life’ can bring with them: Tensions around previous children, child support obligations to distrusted ex-spouses, the difficulties with blended families, even family heirlooms – all of these can mean that a ‘routine’ Will & estate meeting can quickly go off the rails.

So how does a smart lawyer best help his clients?

Three things: Communication, calm and planning.

Clear, consistent communication is essential. Communication needs to be two-way. Lawyers must not only ensure their clients understand the importance of a Will and proper estate planning; they also have to ensure that their clients are asked – and are comfortable answering – the right questions so that no details are missed.

Bring a sense of calm to the proceedings. I’ve heard stories of lawyers getting visibly annoyed or downright rude to common-law couples who get emotional in their offices. This doesn’t help. It’s not good for lawyers, and, frankly, it’s not good for business. Lawyers have the power to defuse and manage conflict they face – and everyone wins when they do.

Have a system in place for common-law couples. SullivanLaw will treat common law couples and married couples the same, but we recognize the differences in Law. So, we ask the right questions so the couple can give proper instructions. When the lawyer and the couple come to the first meeting fully prepared, even if it is with lots of questions, everyone gets more out of it.

Contact SullivanLaw to arrange your Couples’ Wills (common law or married!) consultation.