Claiming dependency – why and how?
A dependent is a spouse, former spouse, father, mother, child, or sibling of the deceased to whom the deceased was either providing support before death or was under a legal obligation to provide support before death. Successfully claiming dependency means proving first that the claimant was a dependent and second that the claimant did not receive “adequate provision”, enough money, under a will. A court can order an estate to pay more than the will provides as a result of a successful dependent support claim.
A spouse can include someone who was married to the deceased; someone who continuously cohabited with the deceased for a period of three years or more; or someone in a relationship of some permanence if they were the father or mother of a child with the deceased (common law husband or common law wife). Someone under a legal obligation to provide support could include someone receiving spousal support or child support. Death is not always an excuse to avoid these obligations. Also, a court can consider money that was never technically in an estate, like life insurance benefits, jointly held property, and jointly held bank accounts.
Who can make a dependent support claim?
Often, parties claiming dependency are:
- a husband or wife of the deceased;
- a common law husband or common law wife of the deceased;
- an ex-husband or ex-wife of the deceased;
- a son or daughter of the deceased, whether they are a child from a previous marriage or a child from a new marriage;
- an adult child of the deceased;
- a disabled child of the deceased; or
- a brother or sister of the deceased.
When should I make a dependent support claim?
A dependent support claim must be brought within six months of the date that a trustee is appointed, so time is of the essence. A dependent support claim does not necessarily prevent a spousal election from being pursued.
Common questions related to claiming dependency:
My son, my daughter, or I received something under the will. Can I still make a dependent support claim?
Yes. The provision must be “adequate”, which will depend on several factors.
I was receiving spousal or child support prior to the death of my ex-husband or ex-wife. Will I get more than a will provides for me or my children?
Maybe. This will depend on several factors, including how much money is available and how many beneficiaries or dependents there are.