War of the Surviving Spouses – Who Gets the Pension?
Eric Strassburger - Oct 20, 2022
In today’s world of overlapping family structures, it is possible for an individual to have more than one spouse simultaneously for purposes of entitlement to certain assets at death.
Such circumstances arise where an individual has cohabited for the requisite number of years to be considered in a common law relationship at date of death (in some provinces 3 years, in others 2 years or less), while still married to another – an estranged, legally separated – but still married, spouse.
At death, a surviving married spouse who was cohabiting with the deceased, or, a common law spouse (who by definition was cohabiting with the deceased), is entitled to share in the deceased spouse’s Pension funds. However, where the surviving married spouse was living separate and apart from the deceased spouse at time of death, that surviving spouse does not have an entitlement.
What are the implications if on the date of death the Pension Plan member is married but living separate and apart from his or her married spouse, and, is living with a common-law spouse? The common-law spouse is entitled to the prescribed percentage of the Pension Plan funds.