Common-Law Relationships in Alberta

Probably not what you think it means... Here's what you need to know.

A couple who lives together, with or without children, but is not legally married is referred to as 'common-law'. However, in Alberta, the term common-law is no longer used. The Adult Interdependent Relationships Act (Alberta) 2002 established 'adult interdependent relationships.'

The AIRA (Alberta) 2002 establishes a legal partnership between two unmarried people. To be recognised as forming an adult interdependent relationship, a partnership must meet specific criteria laid out by the law.

According to the AIRA (Alberta) 2002, all aspects of the relationship must be examined to determine if it is an adult interdependent relationship. The Act also specifies a number of particular elements that the court considers. The following are those elements:

• whether the couple is in a conjugal (sexual) relationship;

• how exclusive the relationship is (for example, whether each person has conjugal relationships with others);

• how the couple usually acts and conducts themselves when it comes to household activities and living arrangements (for example, whether they share rooms or chores);

• the extent to which the couple portrays themselves to others as an economic and domestic unit (for example, whether they introduce themselves to others).

However, these are only some of the considerations a judge might make when determining whether or not two people are in an adult interdependent relationship buty they're also not necessities in the strictest sense. An adult interdependent relationship, for example, does not have to be sexual. It can be platonic (between friends or family), but if it is conjugal, it is more likely to be an adult interdependent relationship.

Your relationship may not be interdependent...

You are not in an adult interdependent relationship if you live together but you:

• have not lived together for three years; and

• do not have a child together; and

• have not signed an Adult Interdependent Partner Agreement.

If this is the case, depending on how long you have lived together, you may still qualify as common-law partners under federal regulations (ie. for tax purposes). You will, however, be ineligible for benefits reserved for adult interdependent partners.

If you and your partner sign an Adult Interdependent Partner Agreement but haven't lived together for three years, you can be called adult interdependent partners. You'll thereafter be eligible for benefits for adult interdependent partners.

(Stay tuned for a future post about Adult Interdependent Partner Agreements.)

Adult interdependent partners, for example, can file for partner support under Alberta's Family Law Act if their relationship has broken down. Unless they have an enforceable agreement to the contrary, Alberta's Family Property Act requires adult interdependent partners to split property in the same way as married couples. An adult interdependent partner is also a 'dependent' for the purposes of the Wills and Succession Act (Alberta) 2010, meaning that a surviving partner can apply for maintenance and support from the estate if the deceased does not make adequate provisions for them in their Will or on intestacy (where the deceased dies without a Will).

What happens if one adult interdependent partner dies without a will?

If a partner dies without a will, they are considered to have died intestate and there are two issues that arise:

1. There is no one in charge of the estate, and

2. There is no official, written record of what the deceased wanted done with their property.

In Alberta, there are two statutes that address these issues. Firstly, the Estate Administration Act (Alberta), 2014 establishes who is eligible to petition to the court for a grant of administration for a deceased person's estate. The administrator is the title given to this person. According to the Act, the surviving adult interdependent partner (or spouse) has first preference in applying to be the estate's administrator or nominating someone else. No one has the authority to deal with an intestate person's estate until the court gives them authorization. Second, the Wills and Succession Act, (Alberta) 2010 specifies who can inherit the deceased's estate once an administrator has been appointed by the court. Using the assets in the estate, the administrator must first pay off the deceased's debts. Any remaining assets, if any at all, are normally auctioned and the proceeds distributed to the recipients.

The surviving partner inherits the entire inheritance if the deceased partner has no offspring (children, grandchildren, great-grandchildren, etc.). If the deceased partner has descendants who are also the descendants of the surviving partner, the deceased partner receives the entire inheritance. If the deceased spouse left behind descendants who are not also descendants of the surviving partner, the surviving partner receives either half of the estate or $150,000, whichever is larger. The remainder of the inheritance is divided among the descendants of the deceased partner.

If the surviving partner is connected to the deceased partner, the surviving partner receives only what they are entitled to as a surviving partner and nothing else. (For example, if the surviving partner is the deceased partner's child, the surviving partner would not be entitled to a larger share of the estate because they are both a partner and a child; they would only be entitled to their share for being a partner.)

A surviving partner has the right to dwell in the family home for 90 days following the death of the deceased partner and to file a claim for support and maintenance. For additional detail on these rights, see the question "What happens when one adult interdependent partner dies with a will?" above.

As you can see, passing without a will becomes a messy and complicated matter. Look after your loved ones and prepare for the unexpected. If you need help with your wills and estates, Paralegal Plus is here to help!