Common Law Spouse in Ontario? You Need a Will

If you are in a common-law relationship, you will want to keep reading. The laws in Ontario are not very friendly for common-law spouses if their partner dies without a will and in the case of an unexpected tragedy, a common-law partner may be left without any share of the estate.

What Does a Married Spouse Get When Their Partner Dies Without a Will

What happens when a married partner dies without a will be discussed in another blog post, but basically, if the partners are married, the value of the property of each partner is determined at the date of death. The surviving spouse then has an option as to the best way to get property from the estate. This means that the surviving spouse is looked after, even if there is no will.

What Does a Common-Law Spouse Get When Their Partner Dies Without a Will

In Ontario, the Succession Law Reform Act is the relevant legislation and dictates how an estate is distributed if a person dies without a will. The legislation draws a clear distinction between a legally married couple and a common-law couple, such that the common-law spouse is not included in the distribution of property at death.

Comparison Between Married and Common-Law Spouse

An example may assist in understanding this concept. John and Jessica have been happily married for 30 years and neither ever thought it was important to get a will. They own a house and have two children who are 17 years old and 15 years old. Jessica was the main breadwinner and John stayed home to look after the children. The majority of assets were in Jessica’s name and she provided John with a weekly allowance.

One day, Jessica was driving home from work and was involved in a tragic car accident, that killed her instantly. At the time of her death, she didn’t have a will, but she was legally married to John. Under Ontario law, John and the children will receive all of Jessica’s assets.

Now take the same example, everything is identical, except John and Jessica never actually married. John still stayed home to raise the children and Jessica still provided for the family. They owned the same house and had all the same assets. While a marriage may not be significant for everyone, Ontario law does make this situation much different.

When Jessica died without a will and was not legally married to John, there is nothing in Ontario law that gives John any right to any of Jessica’s property. This means that upon Jessica’s death, her assets do not simply pass to John, as they would have had they been married.

What Does the Common-Law Spouse Survivor Do When their Partner Dies?

As John was supported  by Jessica, he may request money from the estate and if Jessica’s family liked John, a simple request may be all that is needed. If the relationship between John and Jessica’s family was strained, that may force John to sue Jessica’s estate to receive support.

It is likely that John would be successful and receive some form of support. That can take a lot of time and cost a lot of money in legal fees. The time includes obtaining a lawyer, filing a claim in court, going to court and potentially negotiating with Jessica’s estate. All of this costs money in legal fees and all of these legal fees could be avoided.

Advice for Common-Law Partners: Get a Will

John and Jessica can avoid all of these issues by getting their wills done. John will likely eventually get support from Jessica’s estate. But spending a little bit of money now on legal advice, will save a lot of time and trouble later.

If you are in a common-law relationship, contact Hearty Law for more information. A little bit of time now, while save you a lot of time and money later.

Hearty Law provides legal services in Toronto, Ottawa and the surrounding communities. Email toronto@heartylaw.ca or ottawa@heartylaw.ca.