Wills & Estate Planning for Adult Interdependent Partners (AIPs)
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Estate planning for Adult Interdependent Partners (AIPs) is fundamentally shaped by the Adult Interdependent Relationships Act (Alberta), which grants non-married partners many of the same rights as married spouses. The primary similarity lies in the default safety net provided by the Wills and Succession Act in the event of intestacy. If an Adult Interdependent Partner dies without a will, the surviving partner is generally entitled to the entire estate if there are no children, or if all children are also the children of the surviving partner. This mirrors the treatment of married spouses, ensuring that a long-term partner is not left destitute simply because they never had a formal wedding ceremony. However, the legal definition of an AIP is more complex than marriage; it requires either three years of continuous cohabitation, a relationship of some permanence with a child, or a signed Adult Interdependent Partner Agreement.
One of the most significant differences between Adult Interdependent Partners and married couples involves how the relationship is legally established and, consequently, how easily it can be challenged by other heirs. While a marriage certificate provides indisputable proof of a legal union, an AIP’s status often depends on a fact-specific analysis of whether they functioned as an economic and domestic unit. This can lead to litigation from siblings, parents, or children of the deceased who may argue that the relationship did not meet the three-year threshold or lacked the necessary level of interdependence. For estate planning, this means AIPs must be much more diligent in documenting their status through a formal Agreement or a clear, well-drafted will to prevent costly and stressful court battles over their standing.
When it comes to the revocation of existing wills, the rules for AIPs differ slightly but crucially from those for married spouses. Historically, marriage would automatically revoke a previous will in Alberta unless that will was made in contemplation of the marriage, but current laws under the Wills and Succession Act have changed how gifts to ex-partners are handled. If a couple enters into an Adult Interdependent Partner Agreement, it may impact a prior will similarly to marriage, yet the mere passage of the three-year cohabitation mark does not typically revoke a will. This creates a risk where an individual might have an old will leaving assets to a parent or sibling, and even after five years of living with a partner, that old will remains valid. Married spouses and AIPs both need to update their plans, but AIPs face a higher risk of "accidental" disinheritance due to the gradual, often silent, transition into their legal status.
Property rights upon death have become much more aligned since the Family Property Act was expanded in 2020 to include AIPs. Previously, only married spouses had a clear statutory right to an equal division of matrimonial property upon the death of a partner, while common-law partners had to rely on complex unjust enrichment claims. Now, a surviving AIP has the same right as a spouse to claim a division of family property against the deceased’s estate, ensuring they receive their fair share of assets acquired during the relationship regardless of what the will says. This is a powerful tool for protection, but it also means that both spouses and AIPs must use tools like Cohabitation Agreements or Prenuptial Agreements if they wish to keep certain assets, such as a family business or an inheritance, separate from their partner’s potential claims.
The Dower Act remains one of the few areas where married spouses hold a distinct advantage over AIPs in Alberta. This specific legislation provides a surviving spouse with a life estate in the homestead, meaning they have the right to live in the family home for the rest of their life even if the home was owned solely by the deceased spouse and left to someone else in the will. Currently, these Dower rights do not extend to Adult Interdependent Partners. While an AIP can still make a claim for maintenance and support under the Wills and Succession Act to stay in the home temporarily, they do not have the same automatic, lifelong protection that a married spouse enjoys. This makes it vital for AIPs to specifically address the family home in their estate plan, perhaps by using joint tenancy or a specific life interest clause in their will.
Finally, the concept of Dependants’ Relief applies equally to both married spouses and AIPs, serving as a check against unfair disinheritance. If an individual dies and fails to provide adequate maintenance and support for their partner in their will, the surviving AIP or spouse can apply to the court for a larger share of the estate. The court considers similar factors for both, including the length of the relationship, the surviving partner's financial needs, and the size of the estate. While the legal pathway is the same, the evidentiary burden can be heavier for an AIP, who may first have to prove they qualified as a partner before they can even argue they were inadequately provided for. Consequently, while Alberta law strives for equality, the lack of a marriage license means that AIPs must be more proactive in their estate planning to achieve the same level of certainty and security.
For effective estate planning, AIPs must be more proactive than married couples in documenting their intentions to avoid the pitfalls of provincial default rules. While a marriage automatically revokes a prior will in many jurisdictions (though notably, Alberta’s current laws have moved away from this), the transition into an AIP relationship is often more subtle and requires a fresh review of beneficiary designations on RRSPs, TFSAs, and life insurance policies. Since AIPs lack dower rights, they frequently use Joint Tenancy for real estate or specific Life Estate clauses in their wills to ensure the surviving partner is not displaced from their home. Ultimately, because the legal status of an AIP is more susceptible to challenge than a marriage, having a formally executed will and a clear Adult Interdependent Partner Agreement is the most reliable way to ensure that provincial legislation doesn't override the couple's actual wishes.
Achieving the desired results from your will and other estate planning documents comes from careful consideration of the interplay between the law and the wording of the legal documentation that is drafted to facilitate those objective goals. For knowledgeable legal counsel for wills, trusts, powers of attorney, personal directives and other estate planning documents, contact our law firm today at 403-400-4092 or Chris@NeufeldLegal.com to schedule an initial consultation.
More: AIP FAQs - AIP Agreement - AIPA Inclusions/Exclusions - AIP Estate Planning - AIR FAQs - Not Constrained by Relationship
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