Same-sex divorce and division of assets

Canada’s complicated common law rules are the same regardless of sexual orientation

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From the February/March 2016 issue of the magazine.

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(Image Source / Getty)I have a female friend who plans on moving in with another woman. Do the laws regarding division of assets apply to same-sex couples? I plan to leave money to my friend upon my death.

—Neil M., Interior B.C.

Girl meets boy. Girl meets girl. The common law rules are the same regardless of sexual orientation. But that’s where the simplicity ends. The length of time before you’re considered common law differs depending on where you live; as does whether or not the surviving spouse has a right to claim a share of the deceased’s property. “When you separate as common-law spouses or when a death occurs, sorting out rights and obligations can be like playing a game of Twister—only much more expensive,” says Michael Cochrane, a family lawyer in Toronto and author of Surviving Your Divorce. In a province where the spouse has the right to claim, such as B.C., and the person making the gift does not want the spouse to benefit, Cochrane suggests he or she “should include a specific clause in their will stating that the inheritance and any growth in the inheritance is not to be shared with the deceased beneficiary’s spouse.” In addition, the inheritance should be kept separate from joint assets and not used on shared expenses such as renovating the kitchen or paying down the mortgage. Even in a province that does not give the surviving common-law spouse these rights, such as Ontario, adding that clause is a good precaution. Book a consultation with an estate lawyer and talk with your friend so she clearly understands your intentions.

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