What is a Common Law Spouse Entitled to in Ontario?

Estate planning for common-law partners can be significantly different from that of married couples because common-law relationships are not treated the same as marriages under certain laws, particularly in matters of estate rights and inheritance. 

What is Common Law in Ontario?

 In Ontario, Canada, two people are considered common-law partners if they have been living together in a conjugal relationship for three years. If they have a child together, then they only need to have been living together for one year.

Ontario Common Law Rules

While common law relationships are extremely popular, the law in Ontario continues to treat common law partners quite differently than married spouses. Understanding the distinctions is crucial to ensuring that you and your partner are adequately provided for in the event of death.

Here’s what you need to know.

Inheritance Rights (or lack thereof)

The Ontario Succession Law Reform Act states that if a married person dies intestate (without a will), the surviving spouse has a right to a preferential share of the estate and may also inherit the remainder, depending on whether there are children.

Unlike married spouses, a common-law partner has no automatic right to inherit any part of the estate if their partner dies without a will. Instead, the deceased’s estate is distributed to blood relatives according to the rules of intestacy. This often comes as a surprise to couples who have lived together for many years but never formalized their relationship through marriage.

Common-law partners do have some rights under the Ontario Succession Law Reform Act to make a dependent’s support claim against their deceased partner’s estate. However, this is only the case if they can prove that they were financially dependent on the deceased and the process can be lengthy, stressful, and costly.

Property

Under the Ontario Family Law Act, when a married spouse dies, the surviving spouse has the right to claim an equalization of net family property. This means they are entitled to an equal share of the value of all property acquired during the marriage, regardless of how it is titled. However, common law partners have no such rights. For example, if the house a common-law couple lives in together is solely in the deceased partner’s name, the surviving partner does not have an automatic right to property division.

This distinction means that even if a common-law partner has contributed significantly to a jointly occupied home but is not listed on the title, they may need to pursue complex legal claims to seek any financial compensation or share of the home’s value.

Pensions and Other Benefits

Another area where significant differences arise is in the entitlement to pensions and other survivor benefits. Depending on the pension plan or benefits provider, common-law partners may or may not qualify for survivor benefits. In some cases, extensive proof of cohabitation and financial interdependence may be required.

Estate Planning Considerations for Common-Law Partners

Estate planning for common-law partners is essential. The lack of automatic inheritance rights and property division protections highlight the need for proactive planning. It is always better to be prepared than to leave matters to chance or the courts.  As an Estate Lawyer I would advise that you give some thought to the following Estate Planning considerations to ensure your loved one is taken care of after your death.

Make a Will

If you are in a common-law relationship, having a will is key. It is the only way to ensure your assets are distributed according to your wishes. Without a will your assets will be distributed according to the intestacy rules set out in the Succession Law Reform Act, with your estate passing to your biological family members. Be sure to discuss your wishes openly with your partner to align your plans.

Prepare Powers of Attorney

Designate your common-law partner as your Power of Attorney for Property and Power of Attorney for Personal Care to give them legal authority to make financial and health care decisions on your behalf if you become incapacitated.

Review Property Ownership

How property is titled is another powerful estate planning tool. Common-law partners do not inherit their partner's property unless it was left to them in a will. However, holding property as joint tenants ensures the surviving partner automatically inherits the property. Joint bank accounts provide similar benefits, allowing the survivor immediate access to funds. Joint property is not affected by a will or intestacy rules.

Update Beneficiary Designations

Similarly, you may want to name your common-law partner as the beneficiary on accounts like RRSPs, TFSAs, pensions, and life insurance policies. This will ensure they receive these assets that fall outside of your estate.

Consider a Cohabitation Agreement

A cohabitation agreement can outline each partner’s rights and obligations regarding property and support, providing clarity and protection in the event of separation or death.

Failing to plan ahead can leave your loved one in a vulnerable position, facing costly and complex legal battles at an already difficult time. Professional legal guidance is crucial to navigating the complexities of estate planning. At E is for Estates we can help you create an estate plan tailored to your unique circumstances.

This article is intended for informational purposes only. For personalized advice tailored to your specific circumstance, please reach out to the E is for Estates team.

Erin Watson, J.D., B.A.

Barrister & Solicitor

E is for Estates