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Does Estate Law’s Treatment of Contemporary Relationships Need a Refresh?

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

U.S. Estate Battle Raises Important Issues Regarding Common-Law, Same-Sex Relationships, and the Importance of a Well-Drafted Will

Matter of Morris, 2019 NY Slip Op 30514 (U), 2016-2746/A

A New York State Surrogate Court dispute over a $9 million estate has brought to light important issues in estate law as it pertains to common-law spouses, same-sex couples and whether the law’s treatment of these relationships is fair, equitable and in accordance with modern societal norms. This particular case also serves as a stark reminder of the crucial importance of a well-drafted, up-to-date Will that accurately and unambiguously reflects the testator’s intention.

This is a U.S. case and applies N.Y. State law, however, the Surrogate Court’s decision highlights the stark inequities faced by common-law spouses, when compared to their married counterparts, under estate law in Canadian jurisdictions.

Emlie Anderson (“Emlie”), the daughter of the deceased Joan Anderson (“Ms. Anderson”), is in the midst of a heated court fight with three charities regarding the entitlement to the bulk of the estate of Ms. Anderson’s common-law spouse, Jill Morris (“Ms. Morris”).

Ms. Anderson and Ms. Morris were long-term common-law partners of approximately 20 years when, in 2016, Ms. Morris died after years of battling cancer. Less than two weeks later, Ms. Anderson also died after suffering a stroke.

Ms. Morris’ Will gifted the majority of her $9 million estate to her partner, Ms. Anderson. However, an ambiguous clause in Ms. Morris’ Will stated that the gift to Ms. Anderson was only effective if Ms. Anderson outlived Ms. Morris by 30 days. The clause was unclear because it purported to deal only with personal property, but in fact distributed parcels of real property as well.  Ms. Anderson only survived Ms. Morris by 12 days, and therefore, under a plain reading of the Will, the gift to Ms. Anderson failed. Three charities were listed in Ms. Morris’ Will as the only residual beneficiaries of the Estate.

The Will contained several ambiguities and apparent errors, including the “personal property” clause requiring Ms. Anderson to survive Ms. Morris by 30 days in order to inherit her gift. Emlie argued that this clause did not make any sense and the Will should be construed in favour of Ms. Anderson because it was not Ms. Morris’ intent to limit the gift to Ms. Anderson, her long-term partner, in such a way.

Before a Manhattan Surrogate Court, the charities argued that, on a plain reading of the Will, the gift to Ms. Anderson must fail and the charities should inherit the bulk of the Estate assets. Emlie, on the other hand, argued that Ms. Anderson and Ms. Morris had lived together exactly like a married couple would have for 18 years, and that the clause requiring Ms. Anderson to survive Ms. Morris by 30 days was a mistake that should be rectified in Ms. Anderson’s favour because, surely, Ms. Morris intended for her partner to benefit from her estate.

The Surrogate Court sided with the charities. Ruling that the Will’s language must be interpreted objectively, and on its face the gift to Ms. Anderson was not effective. Under New York State Law, because Ms. Anderson and Ms. Morris were not formally married, Ms. Anderson was not automatically entitled to inherit from Ms. Morris’ estate. The Court also ruled that, because the women weren’t married, the ambiguities in the Will could not be interpreted in Ms. Anderson’s favour, which often happens in the case of married spouses.

Emlie has since appealed the lower court’s ruling, taking the position that the case would be treated differently if the couple were heterosexual and/or formally married. Emlie argues that Ms. Anderson and Ms. Morris had good reasons for not marrying – including their age, professional reasons, and the social stigma attached to same-sex couples. Emlie takes the position that her mother and her mother’s estate should not suffer as a result of the very real societal barriers discouraging couples (particularly same-sex couples) from marrying, particularly in this case, where Ms. Anderson and Ms. Morris lived in what could only be described as a “marriage-like” relationship (living together, travelling together, and intermingling their finances to a certain extent).

Emlie’s appeal is pending.

The Morris-Anderson case raises important issues to consider in estate law, and whether the law’s treatment of contemporary relationships is equitable and in keeping with modern societal norms. The case also highlights the importance of having a clear, unambiguous will, which accurately reflects the testator’s intent and is prepared along with comprehensive solicitor’s notes that identify the reasoning behind the will’s terms.

The dispute over the Morris Estate flags potential issues with estate law, and the law’s inequitable treatment of common-law couples.

Of course, there are many legitimate reasons why common-law partners may choose not to marry. There may be, in some circumstances, additional societal forces that discourage same-sex partners from formally marrying. However, does this make partners who choose to live in a common law relationship any less of a “couple” for legal purposes? In the eyes of Estate Law, the answer is “yes”. In many jurisdictions, including Ontario, surviving common law spouses are not vested with the same inheritance rights as their married counterparts.

Like in New York State, in the Province of Ontario surviving common law partners do not have the choice to make a Family Law Election under the Family Law Act. This option is only afforded to married spouses who may choose to either take the gifts that have been provided for them under their deceased spouse’s Will or receive an equalization of net family property under the Family Law Act. Common law spouses are not afforded that choice. Further, in Ontario, common law spouses are not entitled to inherit on an intestacy, meaning they do not automatically inherit a portion of their deceased partner’s estate, like a surviving married spouse would, in cases where there is no Will. In Ontario, in many cases, the only option available to surviving common law spouses if they are not provided for adequately in the Will of their deceased partner is to make a Dependent Support Claim under the Succession Law Reform Act.

Given contemporary societal norms, and the diversity of modern-day relationships, an argument can be made that these underlying principles of estate law need to be revisited so that surviving common-law partners (many of whom, for all intents and purposes live in the same manner as a married couple would, except for actually tying the knot) are treated equitably in cases where they are not sufficiently provided for in their spouse’s estate plan.

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