Estate planning is difficult to figure out sometimes. It does't get any easier when you have to consider (and understand) what the law says about certain relationships. For example:
What happens to the surviving partner in a relationship other than a formal marriage? Would they be evicted from their home as their partner’s Estate is delivered to the government?
Not necessarily. The law has developed to see some of these relationships as analogous to marriage.
Alberta Law today has codified these relationships once known as Common-Law relationships. These are now referred to as Adult Interdependent Partner (“AIP”) relationships. This has had a significant impact on the Intestacy rules, which now include AIPs in the spousal rules related to Wills.
Definition:
An AIP, within the meaning of the Adult Interdependent Relationships Act (“AIP Act”), is a person who fits the definition found in section 3:
(1)…a person is the adult interdependent partner of another person if
(a) the person has lived with the other person in a relationship of interdependence
(i) for a continuous period of not less than 3 years, or
(ii) of some permanence, if there is a child of the relationship by birth or adoption,
or
(b) the person has entered into an adult interdependent partner agreement with the other person under section 7.
(2) Persons who are related to each other by blood or adoption may only become adult interdependent partners of each other by entering into an adult interdependent partner agreement under section 7.
Notice that this captures the previous idea of a Common Law spouse—a person in a relationship of some duration and permanence, that looks much like a marriage.
However, it goes much broader. Even blood relatives can become AIPs!
This definition is imported into the Wills and Succession Act SA 2010, c W-12.2 (the “WSA” at 1(1)(a)). An AIP is treated in the WSA virtually as the equivalent of a spouse. What does this mean?
AIP and Intestate Distribution
Part 3 Distribution of Intestate Estates follows the expected spousal template for an AIP. If the Intestate person dies without children, the default position is entirely equivalent “the entirety of the intestate estate goes to the surviving spouse or adult interdependent partner” (at 60) In the event that there are children: If natural children, 100% to spouse or AIP; If children not descendants of survivor, then the spouse or AIP receives greater of 50% or the prescribed amount.
In the event that the deceased leaves both a spouse and an AIP, there is a default 50%-50% split. If you entered into an AIP relationship because the spousal formula is not your intention, you will want to ensure you have a Will, which specifies your wishes. Note, however, that there as still implications for an AIP if you have a Will
AIPs and Wills
As with a Spouse, we find that the AIP is given some standard rights, including temporary residence in familial home and use of family goods (s 75); and the right to apply for adequate maintenance and support under Division 2 of the Act. Even if you intend otherwise, the law now recognizes and protects and AIP, as if they were a spouse, limiting some options in a standard Will.
Former AIPs
A former AIP will also be treated the same way as an ex-spouse when the following conditions are met (AIP Act):
10(1) Unless another enactment provides otherwise, an adult interdependent partner becomes the former adult interdependent partner of another person when the earliest of the following occurs:
(a) the adult interdependent partners enter into a written agreement that provides evidence that the adult interdependent partners intend to live separate and apart without the possibility of reconciliation;
(b) the adult interdependent partners live separate and apart for more than one year and one or both of the adult interdependent partners intend that the adult interdependent relationship not continue;
(c) the adult interdependent partners marry each other or one of the adult interdependent partners marries a third party;
d) in the case of an adult interdependent partner referred to in section 3(1)(a), the adult interdependent partner enters into an adult interdependent partner agreement with a third party;
(e) one or both of the adult interdependent partners have obtained a declaration of irreconcilability under section 83 of the Family Law Act.
In this case the AIP is treated the same way as an ex-spouse in section 25 of the WSA, and any gift to the ex-spouse or former AIP, “is deemed to have been revoked and, for the purposes of clauses (a) to (c), the will is to be interpreted as if the former spouse or individual had predeceased the testator.” (at 25(1))
In many ways the new law simplifies and clarifies what will happen to your Estate if you are involved in an AIP relationship. There are still many options open to you as you think about succession planning. Contact us if you would like to review your current Will, or if you have never made a Will before and we’d be happy to answer your questions and guide you through the process of ensuring you have a voice in the distribution of your Estate, and the care of your children in the event of your passing.
Chad Graham is a Barrister & Solicitor with Richards + Company. He practices estate law (dealing with probate and administration of wills), litigation support, real estate, corporate commercial, and has been growing a not-for-profit practice as well.
*** This is not meant to be, and should not be construed as, legal advice for your specific situation. You should contact one of our lawyers here at Richards + Company for further information and to discuss your particular facts and situation.