When Do Couples Become Spouses?

Courts are often asked to determine whether or not a plaintiff was a “spouse” of the deceased in estate litigation.  This may be referred to as the “threshold question,” since being recognized as a “spouse” generally enables the plaintiff a greater claim to the estate. 

The courts have made clear that there is no set criteria, however, there are many possible indicators.  Each couple’s spousal status must be reviewed in the context of their own unique facts. 

A recent decision from the British Columbia Supreme Court is illustrative.  Here, Ms. McFarlane and Mr. Goodburn had been family friends for years.  Following the deaths of their spouses, Mr. Goodburn moved into Ms. McFarlane’s home and they began an 11-year intimate relationship.  The couple regarded themselves as husband and wife despite maintaining separate finances.  When Mr. Goodburn became ill, he relied on Ms. McFarlane for care and assistance until his death.  In his will, he left nothing to Ms. McFarlane and she subsequently argued that the will ought to be varied in her favor as it failed to make a provision for her maintenance. 

To determine whether the will should be varied, the court had to consider whether she was Mr. Goodburn’s spouse.  The court answered this in the affirmative based on factors including: the couple shared a home and a bed, Ms. McFarlane provided care and support, the couple functioned as a unit, and each was committed to life-long financial and moral support of the other.  The court found Ms. McFarlane was in fact a spouse, and ordered the will be varied to provide for her. 

See Amy Mortimore, When are Couples Considered “Spouses”? Your Estate Matters Blog, Sept. 22, 2014.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.