No Ring, No Rights? Common Law Spouses and Estate Claims

By Mirjana (Mira) Markovic

In today’s legal sphere, the concept of a “spouse” has expanded beyond the traditional marriage. More couples are cohabiting in marriage-like relationships without saying “I do”. So, what happens when one partner dies without a Will? Or when a surviving partner is left out of the Will entirely? For common-law spouses, claiming a share of the deceased’s estate is not always straightforward, but it is possible. Let us take a closer look.

Common-Law Spouse

In Ontario, a common-law spouse, also known as a conjugal partner, refers to two people in a marriage-like relationship without being legally married, who either: (1) have lived together for at least three years; or (2) they have a child together and have been living together in a relationship of some permanence (generally one year).

No Automatic Right to Inheritance

The Succession Law Reform Act[1] (“SLRA”) gives married spouses significant rights when their partner passes, including a preferential share of the estate if there is no Will. However, common-law spouses are excluded from these automatic inheritance rights.

To date, s.1 of the SLRA has not amended the definition of “spouse” as it relates to entitlement on intestacy (when someone dies without a Will). Under the existing definition of intestacy, a common-law spouse does not have any statutory entitlement with respect to property. Unlike married couples, a common-law spouse is not entitled to a share of the estate of their deceased partner if their partner dies intestate. This may come as a shock, especially in long-term relationships where one partner was a “dependant” or contributed equally or substantially to joint assets.

Remedies of the Common-Law Spouse

To Become an Estate Trustee

The intestate provisions (s.44-49) of the SLRA rely on the narrow definition of spouse in s.1 of the Act and not the broader definition in s. 57 concerning the “dependant” support claims. However, the combination of s.29 of the Estates Act[2] along with s.44-45 of the SLRA creates the following result: “if an individual dies intestate, leaving a common-law spouse, and other relatives, the common-law spouse has the informal priority over the other relatives to become the Estate Trustee but has no statutory entitlement to a share of the estate.

Dependants’ Claim

Pursuant to the SLRA, a common-law spouse may make a claim against the estate as a "dependant" if they were not adequately provided for. The Court will assess whether sufficient provisions in a Will were made for the common-law spouse or look at myriad factors such as the length of the relationship, contribution by the common-law spouse, degree of financial dependence, etc., if there is no Will. If the Court finds that the common-law spouse has not been appropriately provided for, it can order that a portion of the estate be paid to them.

A common-law spouse must apply within six months of the Certificate of Appointment of the Estate Trustee, although extensions may be granted by the Court.

Unjust Enrichment

If a surviving common-law spouse helped build, contributed to the acquisition, or upkeep of property (i.e., family home) without being legally recognized as the registered owner on title, they may bring a claim for unjust enrichment. This is an equitable remedy based on the principle that one person should not benefit unfairly at the expense of another. The remedy often leads to a constructive trust, a court-imposed interest in property. This claim can be complex but powerful, especially where the estate includes valuable real estate or business that the common-law spouse assisted in growing.

Joint Assets and Designated Beneficiaries

Some assets may pass outside of the estate. If common-law spouses held bank accounts, investments, or property jointly, the surviving common-law spouse may receive these assets by right of survivorship. Similarly, life insurance and pension benefits with named beneficiaries will go directly to those individuals, regardless of what the Will stipulates. So, if the common-law spouse is named as a beneficiary, they will receive such aforementioned benefits. However, be aware that not all joint property held is truly joint because if there is a dispute, the Court will look at who contributed to what and why, and whether it was intended to be a gift or a joint interest.

Challenging the Validity of a Will

If a common-law spouse was excluded from a Will, they may challenge the validity of the same on grounds such as lack of testamentary capacity, undue influence by others, and/or fraud/forgery. I note that such cases are complex and require substantial evidence. However, if the common-law spouse is successful, it can lead to the Will being set aside and a previous Will or intestacy rules to prevail.

Conclusion

The law is slowly catching up to the “modern relationship,” however, there continues to be a sharp line between married couples and common-law couples when it comes to estate rights. Common-law spouses continue to face hurdles when it comes to inheritance. If you are in a common-law relationship, it is imperative that you plan ahead, draft a Will, consider a cohabitation agreement, use beneficiary designations wisely, and discuss openly with your common-law spouse about any expectations.

I hope that this article has provided you with some helpful information. If you have any questions, please do not hesitate to contact me directly at mira@sorbaralaw.com.