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  • Thought I'd start here

    Hi all.

    I have a couple of questions regarding a long overdue divorce that doesn't affect me directly, rather my mother in law. She is elderly and currently dealing with another crisis, therefore I am trying to procure some answers on her behalf so my husband and I can steer her in the right direction once she is able.

    My mother in law (MIL) is 73 and had been separated from her husband for over 30 years. She has been in a cohabitating relationship with another man for over 25 years. My father in law (FIL) has also been living with his common law (can I even call it that?) spouse for almost 30 years. MIL & FIL never obtained a legal divorce. To my knowledge, there are no documents at all that exist that even outline any form of a separation agreement. There is no drama whatsoever and the relationship between all 4 parties is very amicable, hense there has never been a push to pursue a divorce.

    Last week my MIL's common law spouse (SFIL) had a horrible accident and is in a trauma unit in Toronto. MIL has been forced to come face to face with some realities that she has swept under the rug all of these years. I guess my first question is - how, if at all, is my MIL still bound to her former husband? Is he entitled to any of her estate when she passes? Is she responsible to any of his creditors if he passes first? Would she be prudent to see that a legal divorce is put into place in order to protect herself? She and her current spouse has quite a sizeable estate, and while she does have a will in place my husband and I are worried about how this will affect her down the road.

    I'm rather ignorant when it comes to divorce law in Ontario and so before we make an appointment with her to sit down with a lawyer I wanted to see if anyone could shed some light on some of my questions so we can determine if this needs immediate attention.

    Thanks so much to anyone who can help!
    GUF

  • #2
    I would think that without a divorce in place the will could be contested. In Ontario, a spouse is entitled to at least 50% of their spouse's estate.

    fN

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    • #3
      I don't agree with FN. There is no spouse, they are separated. They separated 30 years ago. All access to claims have long since died.

      I would get the advise of a lawyer anyway. If she has a substantial estate she can afford the peace of mind. She can even get a divorce for very little, especially because all are getting along.

      Comment


      • #4
        A very interesting, albeit sad problem.

        The issues probably have much more to do with estate law than family law, but I'll take a few educated guesses.

        First, there is nothing in the world that can render a couple divorced except a court order. If they never got divorced, they're still married. Under the law, she's his wife, he's her husband, until a court says they ain't.

        From a family law perspective, it's doubtful that the FIL (while alive) could make a legal claim against your MIL's assets at this stage. From an estate law perspective, if MIL passes, away, it's my understanding that your FIL would have to apply to a court to overturn the will. And it would be tough to convince the court that your FIL is entitled to anything.

        If your FIL has debt, my understanding of estate law is that the debts can paid from the assets of the estate, but family members don't have to make up the difference, if there is any. Debts of the deceased are limited to the deceased.

        So you're probably in the clear. But I would suggest you seek legal advice from an estate lawyer just to be sure. Getting divorced is probably ideal, but given the fragile state of affairs, an amicable separation agreement might be more advisable effective.

        Comment

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