More committed couples are choosing not to marry, and many areas of Ontario law have begun to recognize this increasingly common family structure. Unfortunately, estate law is not one of those areas, and clients are often unpleasantly surprised to learn that, when one partner dies, they do not have the same rights as legally married spouses.
Many couples assume that because they’ve lived together for a certain period, or because they qualify as spouses under some legislation, they have the same status as married couples across the board. This isn’t true when it comes to the death of a partner, and even common law couples who have lived together for many years have no statutory entitlement to one another’s estates.
Currently in Ontario, there is no automatic right to share in the estate of a deceased common law spouse if that spouse dies intestate. If you do not have a valid Will and are not legally married to your spouse, under the Succession Law Reform Act your estate will be distributed in the following order of priority:
1) to any issue (meaning your children and grandchildren conceived before your death);
2) to your parents;
3) to your siblings;
4) to nieces and nephews;
5) to the remaining next of kin; and
6) to the Crown.
Not only is it distressing for many people to find they are excluded from their partner’s estate, but real hardship can result where the surviving spouse was financially dependent on his or her partner, or where the couple lived in a home that was owned solely by the deceased spouse. Further difficulty may ensue if the deceased was still legally married to his or her former spouse, in which case that person will be entitled to a share of the estate and, if the deceased had no children, may inherit the entire estate.
There are a number of ways you can ensure your common law spouse is protected. Most importantly, you can make your intentions known by naming your partner in a valid Will. You can also hold assets jointly, such as in a joint bank account with a right of survivorship or by owning real estate as joint tenants. Meeting with a lawyer to discuss your estate planning needs can help ensure your partner is financially secure after your death.