Same-Sex Marriages and their Impact on Estate Law and Administration – Hull on Estates #114

June 12, 2008 Hull & Hull LLP Hull on Estates, Podcasts Tags: , , , , , , , , , , , , , , , , , , , , , , 0 Comments

Listen to Same-Sex Marriages and their Impact on Estate Law and Administration.

This week on Hull and Estates, Rick Bickhram and David Smith discuss how changes in the definition of marriage have impacted Estate Law and Estate Administration.

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Same-Sex Marriages and their Impact on Estate Law and Administration – Hull on Estates Podcast #114

Posted on June 12th, 2008 by Hull & Hull LLP

David Smith: Hello and welcome to Hull on Estates. You’re listening to Episode No. 114, on Thursday, June 12th, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.   Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

David Smith: Good afternoon, Rick.

Rick Bickhram: Good afternoon, Dave, how are you doing today?

David Smith: I’m doing well, Rick. Rick, today we thought we’d talk about same-sex relationships and in particular, we would talk about how the changing definition of marriage and the changing view of the Courts regarding same-sex relationships have impacted upon the practice of estate administration and estate litigation.

Rick Bickhram: And this is an interesting topic as it was not too long ago, as I understand, that the Courts, the provincial and federal legislatures both addressed the question.

David Smith: Well that’s right, and what’s happened is, we all know in Ontario that the Court of Appeal in Halpern established the validity of same- sex marriage and, of course, there was then the marriage reference to the Supreme Court of Canada by the Federal Government which has validated the view and the legislation to the effect that marriage is the lawful union of two persons, not a man and woman, but two persons, to the exclusion of all others. And from an estate perspective, this has an impact because as we know, Rick, marriage has a legal significance in the context of estates, doesn’t it?

Rick Bickhram: Absolutely. And the impact that it has on it, is pretty much relevant towards the different remedies that an individual, a spouse, may be entitled to. For instance, and we will go into more greater detail as this podcast goes along, but I will just touch on some topics that are relevant to the definition of a spouse, i.e., intestacy, dependent support claims, whether or not a Will is revocable by a marriage that has occurred between same sexes.

David Smith: That’s right, Rick, and you know marriage really means something when it comes to estates. There’s sort of a common notion out there, I think, to the man or woman on the street, that if they live together for a lengthy period of time that for all legal intents and purposes their relationship enjoys all of the benefits that a married relationship has the benefit of. And we know that that’s simply not the case. The big one is intestacy and let’s talk about that for a second. What happens on an intestacy, Rick, if a man and a woman are not married as opposed to being married?

Rick Bickhram: And that’s a good question, Dave. What it sounds like what you’re referring to here is a common-law relationship.  And the question is, what happens if two parties are common-law and unfortunately one of them dies? Is the other party entitled to something? Under the laws of intestacy, no, they are not! That’s the sweet and simple answer.

David Smith: And it’s pretty dramatic, isn’t it? And, you know, the Courts and some commentators have suggested that the fact that a common-law spouse is entitled to nothing on an intestacy gives rise to a Charter challenge on the basis that in some way, it offends the equality provisions of the Charter for an unmarried spouse to get nothing on an intestacy, but for a married spouse to get something on an intestacy. 

And you know, the Courts and the commentators, there was a case in the Supreme Court of Canada, Walsh, where the Court considered this. And basically the Courts say, “well you know, marriage does have to mean something. And if you have a benefit of being married which is that you take the other’s estate on an intestacy, which is a benefit you don’t get as a common-law relationship, well that’s something that it’s reasonable to expect the parties to understand and there’s nothing wrong with having a legal benefit associated with marriage”. The other point that’s interesting, is the Court said “you know, there’s an easy way for a common-law couple to provide for each other in the event that one of them dies, and that’s, of course, for one of them to make a will benefitting the other”. But in the absence of either of those options, Rick, they have a remedy in any event, don’t they?

Rick Bickhram: Absolutely.  And another remedy that they may consider is a dependant support claim against the estate and I’ll let you go into some detail there.

David Smith: Well you know, the dependant support claim, Rick, is a powerful tool under Part V of the Succession Law Reform Act and as a common-law spouse, that entitlement is available. But you know, coming back to the point that we’ve made and the subject matter of this podcast, that is now a remedy that’s available to same-sex couples who are not in a marriage scenario. And that actually has been the law for quite some time in Ontario, which is, if you’re a homosexual couple or a heterosexual couple who are not married, the reality is that either one of you has a right to make a support claim against the estate of the other, in the event that you’re not married.

Rick Bickhram: Now Dave, under the provisions of Part V of the SLRA, the magic words are ‘dependant’. Do they…under Part V of the SLRA, define what a spouse is?

David Smith: Well, absolutely, Rick. A spouse defined under Part V of the SLRA is anyone who has lived with someone in a cohabitation arrangement for three years or more, or for a period of less than three years if they have a child together. Now the Courts have liberally construed the three year period and cohabitation has also been fairly liberally construed. What essentially happens, Rick, is the Courts want to look for a situation in which there is a basis upon which these people meet the definition of dependency and it’s going to have to look like an arrangement that had some spousal indicators.  And, you know, three years is usually the bottom line minimum number.  But again, that three years doesn’t require that they necessarily live both under the same roof.  But, of course, it’s something that they can pursue. 

You know, Rick, I think too, with the amount of time we’ve got left we probably need to just move along and consider a few of the other situations in the estate context where marriage has some significance and where the same-sex revolution in the law really makes a difference. One of these, I guess as well, Rick, is the whole idea of electing to take under the Family Law Act.  Let’s just talk briefly about that. Is that a right that’s enjoyed by common-law spouses or is it only enjoyed by married spouses?

Rick Bickhram: Good question, Dave. And under the rules of the FLA, that remedy is only available to married spouses, not common-law spouses. However, there is the option for a same-sex couple who have been married to make that FLA election as well.

David Smith: Presumably, Rick, we’re going to see some of these coming down the pipe. I mean, the reality is that legal same-sex marriage is a relatively new phenomenon.  And, you know, in our practice, we just typically haven’t seen a lot of people exercising these entitlements, but that’s only because it’s a new phenomenon. And what’s going to happen is, over the passage of time, we are going to be seeing situations in which same-sex married couples have the opportunity to exercise these benefits available to everyone. And the bottom line is that marriage, as a legal relationship between a man and a woman, a man and a man, or a woman and a woman, is going to give rise to these entitlements under the FLA as long as there is a marriage. Again, it’s fairly critical.

Yes, there are some other sort of  more mundane issues relating to estate administration. One of them is the right to be appointed as the estate trustee. That’s a right that’s available to, you know, people in a more liberal definition of spouse. So you don’t have to be married to have the right to be appointed as estate trustee in priority to anybody else. Under the FLA there’s also a right to claim damages.  That’s now available to spouses as well.  And again, the whole framework has changed such that same-sex entitlement gives rise to this option.

One thing I wanted to talk about briefly, Rick, was the precursor to the marriage definition which was the decision of the case in M&H, and that’s where the Court said “you can’t give rights to opposite sex common-law spouses that you don’t also give to same-sex common-law spouses”.

Rick Bickhram: You’re absolutely right here, Dave. You cannot discriminate on the basis of sexual orientation.  And I think that was (a) the decision in M&H, and (b) following that decision, the pith and substance behind much of our legislation that has revolved around that decision.

David Smith: Right, Rick. So you know, it’s going to be really interesting in our practice to see this new development take shape and to see these kind of cases come into our offices as lawyers.  And, of course, it’s going to, the bottom line here is it’s making available entitlements and remedies to a greater percentage of the population and that can only be a good thing.

Rick Bickhram: Absolutely. As society evolves, so will our laws to adapt with it.

David Smith: Thanks, Rick.

Rick Bickhram: Thank you Dave, and for all those listening out there, have a great day.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at

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