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Legal Ease
Legal Ease, Lawyer
Category: Canada Family Law
Satisfied Customers: 96433
Experience:  I am a practicing lawyer and have also been an online professional for 5 years.
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My husband and I were divorced in Ontario on February 4,

Customer Question

Hi
My husband and I were divorced in Ontario on February 4, 2013. He was living with someone for approximately 8 months prior to that, roughly since June, 2012. He died on March 9, 2013. Could the relationship between he and his girlfriend legally be considered as Commonlaw Husband and Wife?
Submitted: 9 months ago.
Category: Canada Family Law
Expert:  Legal Ease replied 9 months ago.

I am sorry for your loss.

Is this about the survivor's pension or something else?

The definition of common law is different depending on what law is involved.

Customer: replied 9 months ago.
Thank you.
It is about his work pension and anything else that the estate may be entitled to. He left the girlfriend as the trustee for the inheritance of our two sons. I am somewhat concerned that she has "stretched" the definition of common law. I know that he wanted me to have nothing. I can live with that, but I am wondering if our sons are entitled to anything else aside from their inheritance.Since we were still legally married until 4 weeks prior to his death, does their time together count as a legal common law relationship? How can anyone be a common law spouse while still legally married to someone else?
Expert:  Legal Ease replied 9 months ago.

It is possible to be in a common law relationship while still legally married.

Whether she is entitled to his work pension depends on what their definition of spouse is. It is not likely that she can be considered a common law spouse before one year. I personally have never heard of any pension or other benefit that is for a common law spouse to apply for a couple who are cohabiting for less than a year.

So you need to speak to the pension plan administrator and if necessary retain a lawyer to essentially threaten them with a lawsuit if they are planning on providing her and not the estate with the funds that are owing.

Customer: replied 9 months ago.
If she were name the beneficiary to the pension would it make a difference or should the pension go to the estate? I am not sure if the pension plan administrator would reveal any information to me, especially since we were divorced a month before he died.
Expert:  Legal Ease replied 9 months ago.

If she is designated then the funds vest in her and not the estate.

They may not reveal specifics but should give you general information in terms of who is a spouse.

Customer: replied 9 months ago.
Would the will reveal if she is the beneficiary to the pension benefits? I know that she certainly won't tell me.
Expert:  Legal Ease replied 9 months ago.

Not if she is the designated beneficiary. Then the pension does not vest in the estate and so the Will has nothing to do with it.

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