By: Azaria Cheddie 13th July, 2020
This post outlines the rights of a common law spouse to make a claim under the Administration of Estates Act when a partner has died without leaving a valid will.
Administration of Estates Act
Under this Act, a “cohabitant” means a person of the opposite sex who, while not married to the intestate (someone who has died without leaving a valid will), continuously cohabited in a bona fide domestic relationship with the intestate for a period of not less than five years immediately preceding the death of the intestate.
Section 25 outlines as follows:
(1) Notwithstanding section 24, where an intestate dies leaving no surviving spouse, but dies leaving a surviving cohabitant, the cohabitant shall be treated for the purposes of this Act as if he or she were a surviving spouse of the intestate.
(2) Notwithstanding section 24, where an intestate dies leaving a spouse and a cohabitant and the intestate and his spouse were at the time of his death living separate and apart from one another, only such part of the estate as was acquired during the period of cohabitation shall be distributed to the cohabitant, subject to the rights of a surviving spouse and any issue of the intestate.
Procedure to Make an Application and Deadline
A surviving cohabitant claiming a share of the estate of an intestate under this section shall, within twenty-eight days of the death of the intestate, file with the Registrar of the Supreme Court a notification of interest as the surviving cohabitant and, within three months thereafter or such other time as the Court considers appropriate having regard to all the circumstances, obtain an order from the Court affirming the cohabitational relationship with the intestate and stating the quantum of the share of the estate to which the cohabitant is entitled.