Dependent Support Claim (Claiming Dependency)

Dependent Support Claim – 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.  A successful dependent support claim means proving first that the claimant was a dependent and second that the claimant did not receive “adequate provision”, enough money or assets, 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:

1. a husband or wife of the deceased;
2. a common law husband or common law wife of the deceased;
3. an ex-husband or ex-wife of the deceased;
4. a son or daughter of the deceased, whether they are a child from a previous marriage or a child from a new marriage;
5. an adult child of the deceased;
6. a disabled child of the deceased; or
7. 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 a long list of 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.

I was not married to the deceased, but we were in a relationship for a long time.  Can I make a dependent support claim?  

If you had been continuously living with the deceased for three years or more, or if you had a child with the deceased, and were left nothing or an “inadequate” amount under a will, you should contact a lawyer to consider bringing a dependent support claim.