What if my common-law partner dies without a will?

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What if my common-law partner dies without a will?

Common-law relationships have become more commonplace in Canada, and common-law couples enjoy many of the same rights and protections as married couples under the law. However, in provinces like Ontario, there are some important distinctions when it comes to estate law, notably the division of assets and the automatic right to inheritance.

Common Law vs Married Couples in Estate Law

According to Ontario’s Family Law Act, a couple is considered to be common law, or “unmarried spouses” on the condition that they:

  • have been practicing an intimate, live-in relationship for at least 3 years, OR
  • have been living together for any amount of time but have a child together

When a person dies without a legal will, it’s called dying intestate — or an intestacy. When this happens, Ontario’s Succession Law Reform Act determines how the estate is distributed. Under the Succession Law Reform Act, a common-law spouse does not inherit.

In some situations, an unmarried spouse may make a claim to their partner’s property by making an unjust enrichment claim or a resulting trust claim. However, these types of claims can be very hard to prove, which is one of many reasons why a legal will is critically important.

What is Considered a Legal Will in Ontario?

In the province of Ontario, there are two types of recognized wills: Formal Wills and Holographic Wills.

A Formal Will is drafted by a lawyer, and dated and signed with two witnesses present. A Holographic Will is a handwritten document that is written, dated and signed by the testator. While both wills are considered valid, Holographic Wills can often cause more issues than they solve.

What Happens if my Common-Law Partner Dies Without a Will?

If your common-law partner didn’t have a valid will or did not adequately provide for you in their will, then “intestacy rules” say your partner’s property goes to their children, or to other relatives if they didn’t have any children.

Fairly or not, common-law spouses do not have an automatic right to an inheritance or to property. Only married spouses have the right to a share of the estate if their partner dies intestate. 

Married spouses are also the only type of “spouse” that retains the right to live in their partner’s home in the event of intestacy. Common-law spouses, on the other hand, may find themselves out of the matrimonial home unless they are also on the title.

What Happens if We Had Joint Property Together?

If you and your common-law partner owned real estate together, what happens to the property after your partner dies depends on how you own the property. You become the sole owner of any real estate that the two of you held in “joint tenancy”. 

However, if the two of you held real estate as “tenants in common” then your partner’s share of the property goes to their estate, which is then divided according to their will or intestacy rules. Learn more about what happens to property in the absence of a legal will.

How are Children Affected by Intestacy?

In the event of intestacy, the deceased’s biological and adopted children can receive property and support. Whether the couple was married or unmarried does not affect their children’s right to inheritance. 

But estate law is about more than the division of assets — it also influences custody decisions. For example, if your common-law partner dies without leaving a will and you want their children to live with you, you might have to go to court to apply for guardianship of them, even if they’re already living with you.

Protect the People you Love with a Legal Will

For better or worse, in cases of intestacy, common-law spouses do not have the same rights and privileges as married spouses under estate law. This doesn’t mean you have to get married to ensure your loved one is taken care of — you simply need a valid will. 

Your Last Will and Testament will ensure that you decide what happens to your assets, and who will take care of your dependents after you’re gone. It can also help prevent the infighting and disputes that can occur in the absence of clear guidelines for the division of assets. 

It’s never too early to make your will. Contact the estate law experts at Stewart Esten to get started today.

The information provided herein is not intended as legal advice and should not be construed as such. For personalized legal guidance, it is recommended to seek the assistance of a qualified lawyer.
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