What Are the Rights of a Common-Law Spouse When Someone Dies in Ontario?
A couple can live together for twenty years, raise children, share expenses, and build a life together.
Then one partner dies without a will.
The surviving partner may be shocked to discover that Ontario law does not treat them the same way it would a legally married spouse.
That does not mean a common-law spouse has no rights.
It means those rights come from different parts of the law, and understanding that distinction is critical.
A Common-Law Spouse Does Not Automatically Inherit on an Intestacy
This is the starting point, and it surprises many people.
If someone dies without a valid will in Ontario, the Succession Law Reform Act determines who inherits the estate.
A common-law spouse does not automatically inherit under those intestacy provisions.
That means a person may have lived with the deceased for decades and still have no automatic entitlement to the estate simply because of the relationship.
If the deceased had children, parents, siblings, or other next of kin, the estate may pass to those relatives instead.
This is fundamentally different from the position of a legally married surviving spouse.
What If There Is a Will?
If the deceased left a valid will naming the common-law spouse as a beneficiary, the spouse may inherit in accordance with the terms of that will.
The fact that the couple was not legally married does not prevent one partner from leaving property to the other.
The difficulty arises where the will provides little or nothing to the surviving partner, or where there is no will at all.
In those circumstances, the common-law spouse may need to look beyond ordinary inheritance rights and consider whether another legal claim is available.
A Common-Law Spouse May Be Able to Bring a Dependant Support Claim
Ontario law recognizes that a common-law partner may qualify as a “spouse” for the purpose of a dependant support claim.
Generally, this includes two people who were not married to each other but who:
• Cohabited continuously in a conjugal relationship for at least three years
or
• Were in a relationship of some permanence and were the parents of a child
Meeting the definition of spouse is only part of the analysis.
To qualify as a dependant under the Succession Law Reform Act, the claimant must also establish that the deceased was providing support, or was under a legal obligation to provide support, immediately before death.
If adequate provision was not made, the Court may order support from the estate.
What Does the Court Consider in a Dependant Support Claim?
These cases are not decided using a simple formula.
The Court looks at the relationship as a whole.
Relevant considerations may include:
• The length of the relationship
• The surviving partner’s financial circumstances
• The support provided during the relationship
• Contributions to the deceased’s welfare
• Contributions to property or a business
• The standard of living enjoyed during the relationship
• The size of the estate
• The competing claims of other dependants
• Any agreements between the partners
The legal question is not simply whether the surviving partner was left out of the will.
It is whether the deceased made adequate provision for the proper support of a person who qualified as a dependant.
Our article on dependant support claims and moral obligations looks more closely at how Ontario courts assess these obligations.
Timing Matters
Dependant support claims are subject to an important limitation period.
Under the Succession Law Reform Act, an application generally must be commenced within six months from the grant of probate or administration.
The Court does have limited discretion to permit a later claim against property that remains undistributed, but relying on that discretion is risky.
A surviving common-law spouse who believes they may have a claim should therefore obtain advice promptly.
Once estate assets have been distributed, the available remedies may become significantly more complicated.
Property Rights Are a Separate Issue
Inheritance rights and property ownership are not the same thing.
Suppose a couple lived together in a home that was registered solely in the deceased partner’s name.
The surviving common-law spouse does not automatically acquire a one-half interest simply because they lived there together.
Ontario common-law couples do not have the same statutory property equalization regime that applies to married spouses.
However, a surviving partner may have separate equitable claims depending on their contributions to the property or to the couple’s accumulated wealth.
Claims based on unjust enrichment or constructive trust can arise where one partner contributed significantly to property or wealth held in the other’s name without receiving a corresponding benefit.
These are fact-specific claims and are legally distinct from a dependant support application.
What About Jointly Owned Property and Beneficiary Designations?
Some assets may pass outside the estate entirely.
Examples can include:
• Jointly owned property with a valid right of survivorship
• Life insurance with a designated beneficiary
• RRSPs or RRIFs with designated beneficiaries
• TFSAs with designated beneficiaries or successor holders
Whether an asset actually passes outside the estate depends on how it was structured and, in some cases, the intention behind the arrangement.
Joint accounts are a frequent source of litigation, particularly where family members dispute whether the surviving account holder was intended to receive the funds beneficially.
Our discussion of joint accounts in Ontario addresses that issue in greater detail.
Can a Common-Law Spouse Apply to Administer the Estate?
Yes, and this creates an important distinction.
A common-law spouse may have no automatic right to inherit on an intestacy but may still be among the people entitled to seek appointment as the estate trustee.
Section 29 of Ontario’s Estates Act permits the Court, in certain circumstances, to grant administration to the person with whom the deceased was living in a conjugal relationship immediately before death.
Being entitled to apply to administer the estate does not mean that person is entitled to inherit it.
Those are two completely separate legal questions.
That distinction is particularly important in intestate estates.
What If the Deceased Was Still Legally Married to Someone Else?
This is where the estate can become particularly complicated.
A deceased person may have been legally married to one person while living in a common-law relationship with another.
That can create competing rights under different statutes.
The legally married spouse may have rights arising from the intestacy provisions or the Family Law Act, while the common-law partner may have a dependant support claim or other property-based claims.
These estates can become contentious quickly because several legally valid claims may exist at the same time.
Where competing spousal claims arise, careful analysis is usually required before the estate should be distributed.
Common-Law Does Not Mean No Rights
The phrase “common-law spouses do not inherit in Ontario” is technically important, but it can also be misleading if taken too far.
A common-law spouse may have significant rights after a partner’s death.
Those rights may arise through:
• The deceased’s will
• A dependant support claim
• Joint ownership
• Beneficiary designations
• Contractual rights
• Unjust enrichment or constructive trust claims
• The right to seek appointment as estate trustee
The correct legal analysis depends on the nature of the relationship, the assets involved, and how the deceased arranged their affairs.
A Practical Perspective
Common-law estate disputes are often difficult because the surviving partner’s lived reality and their strict inheritance rights can look very different.
A person may have shared a home, finances, responsibilities, and daily life with the deceased for many years, yet still discover that they have no automatic entitlement under Ontario’s intestacy rules.
That is not necessarily the end of the matter.
Ontario law provides other potential remedies, particularly where the surviving partner was financially dependent on the deceased or contributed substantially to the relationship and its assets.
The important question is not simply whether the couple was “common-law.”
It is which legal rights arise from the particular relationship, the estate, and the way the assets were owned.
Where those rights are disputed, the matter may require Estate Litigation.