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Legal will when common law?

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  • Legal will when common law?

    Hi there, I am hoping that someone can assist me with opinions prior to me deciding how to handle this situation, involve a lawyer, etc.

    I just found out that my common law partner of 5 years has newly drafted a will, wherein his ex-wife is the executor/executrix. He had verbally informed me that I am the executor, however that was now obviously a lie.

    My situation is as such:
    My partner owns the home we live in, and I pay 50% of mortgage currently.
    We jointly own two vehicles together.
    90% of the furniture in the home was purchased by me prior to our moving in together.

    According to his will, if he were to pass away, his ex-wife would receive the house in trust to their son, and his share of the vehicles we own together.

    To put this very bluntly, how screwed am I in this situation? Can I somehow get all of this sorted out?

    Thank you for your time in reading this matter, and I appreciate all constructive feedback.

  • #2
    If you are common-law you have little claim on the value of the home, except as to increase in equity since you started co-habitating.

    I wouldn't say you are screwed, maybe misled. You should have a discussion with him with a view to making an arrangment that recognizes your contribution to paying down the mortgage. If he refuses, then maybe you should state that you are unwilling to continue paying half of the mortgage until this is addressed.

    It sounds like a marriage contract is in order here.

    Comment


    • #3
      Regardless of what the will says, child support for his son has first claim on the estate. His custody/separation agreement should specify exactly how much the claim is (assuming he is paying CS to his ex).

      I believe there is a legal problem in naming you as executrix, since you would have a conflict of interest with this first claim (I am in a similar situation, so I read up a bit on this). That might be just an academic issue i.e. there would need to be some demonstrated problem in how the will is executed before anyone could complain.

      Sucks that he chose to accomodate this claim using the house you live in!!! Kind of short-sighted too, since it assumes you&he will not sell that house before he dies. Also I agree it is unfair if his son is older i.e. if the value of the house is much larger than the remaining amount of CS to be paid.

      Try comparing your housing expenses (mortgage+repair+utilities+property tax+home insurance) to what you would be paying to your husband as a RENTER of your home. If it is much greater (e.g. if you are paying down the mortgage aggressively, or contributed to the downpayment, or have large repair expenses) then I agree you SHOULD have a claim to part of the house value. Personally, I'd reduce my contribution to RENTER level (and pocket the difference) if I knew that the house could 'vanish'.

      Is he also paying spousal support?
      Last edited by dinkyface; 03-01-2010, 07:06 PM.

      Comment


      • #4
        Please read about Resulting and Constructive trusts. Here is one page with some introductory info as it applies to common law marriages.

        Since you have been paying directly into the mortgage, it looks like you have an argument for a Resulting Trust, but these things are among the most complicated legal arguments and you really really need to consult a lawyer.

        It seems like this is already going to be a source of contention between the two of you, you need to get it worked out soon if you are going to protect yourself. The reason being, you are now aware of your husband's intent with regards to the disposition of the house, so this reduces the arguement that there could have been an implied or understood trust. Up until now you have been merrily paying the mortgage and thinking you had a share of the house. So you need to establish your trust relationship now, if your husband isn't going to co-operate.

        You are between a rock and a hard place, it's not like you can sue him without ending your relationship, but it doesn't sound like you were contemplating that. But you can't just let things slide, either. Ideally the solution would be either for him to buy you out for the amount you have paid into the mortgage or he should agree to legally make it a joint ownership. Or the bastard could just marry you.

        I wouldn't sit on the status quo without consulting a lawyer. I'm not sure suddenly stopping paying the mortgage right now would be a good idea either, if you've established a trust then you want to keep it that way. Get some proper legal advice.

        Comment


        • #5
          Originally posted by dinkyface View Post
          Regardless of what the will says, child support for his son has first claim on the estate.
          I'm not so sure that the estate has any obligation to pay explicit CS.

          This should be handled by having the Dad agree to carry adequate life insurance (with the child or a trustee for the child name as beneficiary) to provide for his dependant on his death.

          Comment


          • #6
            Originally posted by dadtotheend View Post
            I'm not so sure that the estate has any obligation to pay explicit CS.

            This should be handled by having the Dad agree to carry adequate life insurance (with the child or a trustee for the child name as beneficiary) to provide for his dependant on his death.
            Oh, right, I forgot about life insurance! Sorry, was writing only about the case where one has enough assets to be considered 'self-insured'.

            Raises a good question for the OP - does her partner have life insurance and who is beneficiary?
            Last edited by dinkyface; 03-01-2010, 08:56 PM.

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            • #7
              We're common law in this household and I am the beneficiary for the benefits which covers stepkid's child support needs. Hubby never married birth mother and the courts sided with us on the issue of her being the beneficiary and let me be it.

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              • #8
                Originally posted by iwannarock View Post
                I am the beneficiary for the benefits which covers stepkid's child support needs.
                Hmm, what? Are you referring to life insurance (which could have EITHER you stepson or you as beneficiary), or a health benefit plan (covering medical expenses for your household, excluding his ex)

                Comment


                • #9
                  Thanks everyone. Yes, he has life insurance in place with his son as the benefactor. He is paying CS and spousal support currently, and will continue for years.
                  I have researched resulting trust extensively, and by the cases that I have read, it appears the legal fees are higher than the potential to win as it is such an all consuming and lengthy process.
                  It appears that I need to open up this conversation, and be prepared to walk away if the conversation does not have a happy ending. I have my own young child to think about in all of this as well, and was hoping to stick it out and keep her in a happy family environment. But at the end of the day, if I am working to pay off his mortgage so that I then one day end up homeless, that is not in my best interests, or that of my child.
                  Common law is quite difficult.

                  Comment

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