The misconception that common law partners have the same rights as married couples is not uncommon. Despite the similarities between common law and married couples, the two relationships are not always treated the same under the law in Ontario. This blog post sheds light on the inheritance rights upon death of a married spouse versus a common law partner.
In the context of estates, the Ontario’s statutory framework does not grant common-law partners all of the same entitlements of married spouses.
Pursuant to the Ontario Family Law Act, the surviving spouse of a married couple has the right to elect to either 1) take his or her entitlement under the deceased’s will, or 2) receive the equalization payment set out under the Family Law Act. A surviving spouse would likely make the election if the equalization would provide them with a greater share of the estate than what is provided for in the will. The election must be filed within six month of the date of death. A common law spouse does not have the right to make an election for equalization but, of course, are entitled to what is given under a valid will.
Part II of the Succession Law Reform Act sets out the rules for who inherits the deceased’s estate in the event of an intestacy, which means that the deceased died without a valid will. A surviving married spouse is entitled to a “preferential share” of the deceased’s estate before the remaining assets are distributed, to which they are also entitled to share in. The value of the “preferential share” is currently set at $200,000.00. A common law spouse does not have any statutory entitlement to receive a portion of the estate on intestacy.
Where the deceased has not made adequate provision for the proper support of a dependent spouse, the surviving spouse can make a claim for a dependent’s relief from the estate. Both married and unmarried surviving spouses can bring an application for dependent’s relief.
In the absence of being adequately provided for under a will, or through other designated proceeds, the surviving unmarried spouse runs the risk of being excluded from benefiting from the estate of the deceased spouse. The surviving spouse would need to consider making a claim for dependent’s relief, or seeking an equitable remedy such as constructive trust or unjust enrichment, which may be a lengthy and costly process.
Common law spouses should discuss their estate plans with their partners and lawyers to ensure that their estate is protected from litigation in the event of their death. A will and cohabitation agreement are important documents to consider if you are in a common law relationship and want to ensure your estate is distributed in accordance with your wishes and your obligations to dependents are met.
This blog post was written by Kate Wright. Kate is a member of the Family Law, Wills and Estates and Litigation teams. She can be reached at 613-369-0383 or at [email protected].
