Living Common-Law? Without a Will, Your Partner May Inherit Nothing

You consider them your spouse. Under Ontario’s intestacy laws, they may not be.

You may have shared a home, combined your finances, raised children and built a life together. But if you die without a valid will, your common-law partner may have no automatic right to inherit from your estate, regardless of how long you were together.

What Happens If I Die Without a Will?

If you die without a valid will, you are said to die “intestate.” Ontario’s Succession Law Reform Act (SLRA) then determines who inherits your estate.

For the purpose of distributing an intestate estate, “spouse” generally means a legally married spouse. It does not include a common-law partner.

If you leave a legally married spouse and no children, your spouse generally inherits the entire estate. If you have children, your spouse is entitled to the first $350,000, known as the “preferential share.”

If your estate is worth more than $350,000, what remains after the preferential share is called the “residue.” It is divided as follows:

• If you have one child, your spouse and child each receive one-half of the residue.
• If you have more than one child, your spouse receives one-third and the children collectively receive two-thirds.

For example, if you die leaving a net estate of $650,000, a legally married spouse and two children, your spouse receives $350,000 plus one-third of the remaining $300,000 for $450,000 in total. Your children divide the remaining $200,000.

If instead of a legally married spouse you have a common-law partner, the outcome changes dramatically. Under the intestacy rules your common-law partner receives no preferential share, no portion of the residue and no other automatic share.

Does That Mean My Common-Law Partner Receives Nothing?

Not necessarily. If you don’t leave a will, whatever your partner receives will generally come from outside the intestacy rules or through a legal claim.

Some assets may pass to your partner outside your estate. Property owned in joint tenancy may pass directly to the surviving owner. Life insurance and registered accounts may also pass to a named beneficiary. The result depends on how each asset is owned and whether you made a valid beneficiary designation.

Your common-law partner may also be able to bring a “dependant’s relief claim” against your estate. Although a common-law partner is not a spouse for intestacy purposes, they may qualify as a spouse when seeking dependant support under the SLRA. For such a claim, common-law spouses generally include couples who:

• lived together continuously in a conjugal relationship for at least three years or
• lived together in a relationship of some permanence and are the natural or adoptive parents of a child.

Your relationship alone is not enough. Your partner must also qualify as a dependant by showing that, immediately before your death, you were providing support or had a legal obligation to provide it. 

If you did not make adequate provision for your partner, the court may order support from the estate. It may consider your partner’s finances, age, health and ability to support themselves; the length and nature of the relationship; your partner’s contributions; the size of the estate; and the needs of other dependants.

A dependant’s relief claim is a possible remedy, but not an automatic inheritance. Every claim depends on its facts.

What is Probate, and Why Does the Deadline for a Dependant’s Relief Claim Matter?

Probate is the commonly used name for the court process through which a Certificate of Appointment of Estate Trustee is issued. The certificate confirms the estate trustee’s authority to administer the estate, whether or not the deceased left a will. 

A dependant’s relief claim must generally be commenced within six months after the Certificate of Appointment is issued. A late claim may be permitted, but relief can be limited once estate assets have been distributed. Anyone who may have a claim should obtain legal advice immediately. 

Do Not Leave Your Partner’s Future to the Default Rules

If you live common-law, do not assume that your years together will protect your partner. A properly prepared estate plan can identify your beneficiaries, coordinate jointly owned property and beneficiary designations, and reduce the risk of costly litigation. If you want to ensure your loved ones are included in your estate planning, speak with an estate lawyer as soon as possible.

If you have been left out of a loved one’s will, or your loved one died without a will, speak with an estate litigation lawyer as soon as possible. If you wait too long, you may not get what you should be entitled to.