Common-Law Partners & Inheritance in Ontario

Lots of couples in Ontario live together for years, buy a home, raise children and share their finances without ever marrying. Day to day, nothing feels different from being married. But when one partner dies, the law draws a sharp line, and it catches almost everyone by surprise.

The short answer

If your partner dies without a will, you don't inherit automatically. Ontario's rules for dying without a will, set out in the Succession Law Reform Act, only give a share to a married spouse. A common-law partner has no share under those rules, however long you lived together.

Instead, the estate goes to the deceased's other relatives: their children first, and if there are none, their parents, brothers and sisters or more distant relatives. That can mean a partner of 20 years is left with nothing, while a relative they hadn't spoken to in years inherits the house.

What a married spouse gets that you don't

For comparison, a married spouse of someone who dies without a will receives the first $350,000 of the estate, plus a share of the rest if there are children, or everything if there are no children. Common-law partners get none of that.

The same gap appears in property rules. When a marriage ends or a spouse dies, the Family Law Act lets a married spouse claim an equalization of family property. Those rules apply only to married spouses. A common-law partner who helped pay for a house or build a business may be able to bring a separate claim in court based on their contribution, but those cases are slower, cost more and have less certain results.

What you can claim: dependant support

There is one important protection. Under Part V of the Succession Law Reform Act, a dependant can ask the court for support from the estate if the deceased didn't make adequate provision for their proper support. Common-law partners can make this kind of claim.

For these claims, Ontario's Family Law Act treats two people as spouses if they have lived together as a couple for at least three years, or they are in a relationship of some permanence and are the parents of a child together. Different laws use different definitions, so don't assume you qualify without checking.

A support claim is not the same as an inheritance. You have to apply to court, you have to show that you were dependent on your partner, the court decides how much support is appropriate, and there is a short deadline: under the Succession Law Reform Act the application generally cannot be made more than six months after the court grants probate (or letters of administration), although the court can allow a later claim against any part of the estate that has not yet been distributed. It's a safety net. It isn't a plan.

Where common-law couples get caught

• The home is in one name. If the house is only in your partner's name and they die without a will, it goes to their relatives under the intestacy rules. You may have to fight to stay in it.
• Accounts and investments are in one name. Without a joint account or a named beneficiary, they become part of the estate.
• Registered accounts and insurance name someone else. An RRSP or life insurance policy that still names an ex-partner, a parent or a child goes to that person, whatever the will says.
• Nobody can act for you while you're alive. A partner has no automatic authority to deal with your bank or manage your property if you become ill.
• Children from earlier relationships. If either of you has children from another relationship, the rules can leave the surviving partner and those children in conflict.

What to do about it

1. Each of you should make a will. A will lets you say who inherits, who looks after the children, and who carries out your wishes. If you want your partner to stay in the home, or to inherit it, a will is how you make that happen.
2. Look at how you own your home. Owning a home jointly with a right of survivorship means it passes to the survivor automatically, outside the will. That can be a good solution, but it has other effects, including on what happens if the relationship ends, so talk it through before you change anything.
3. Check your beneficiary forms. RRSPs, TFSAs, pensions and life insurance often pass to the person named on the form. Make sure the names match your plan, and ask your accountant about any tax effects.
4. Sign powers of attorney. A continuing power of attorney for property lets someone you choose manage your money if you can't. A power of attorney for personal care lets them make health-care decisions. Ontario's rules for health-care decisions list a spouse or partner among the people who can decide, but a power of attorney avoids disagreement with other family members.
5. Consider a cohabitation agreement. It sets out in writing who owns what and what happens if the relationship ends or one of you dies. It works alongside a will, not instead of one.

Two examples

These are illustrations, not real cases, but the situations are very common.

The house in one name. Maria and Dev have lived together for 14 years in a house bought in Dev's name. They have a daughter. Dev dies without a will. Maria isn't a "spouse" under the intestacy rules, so she has no automatic share of the estate, and the house forms part of it. She could ask a court for support, but she would be doing it while grieving, against a deadline, with no certainty about the result.

The blended family. Sam has lived with Priya for five years. Sam is divorced and has two adult children. Sam dies without a will. With no spouse, Sam's two children inherit the estate under the intestacy rules. Priya, who may have paid half the household costs for years, has no automatic right to any of it.

A short will would have changed both outcomes. Dev could have left Maria a right to stay in the home, or the home itself. Sam could have left Priya a defined share, and the children the rest, and made it clear who manages the estate.

If your partner has already died

If you are a common-law partner and your partner has died without a will, get legal advice quickly. The deadline for a support claim is short, and decisions made early, such as agreeing to leave the home, can affect your position. We don't handle probate or estate administration, but we can point you towards the right kind of help.

Protect your partner with a plan that fits

We prepare wills and powers of attorney for families in Mississauga, Brampton, Oakville, Vaughan and across Ontario, in English, Urdu, Hindi and Punjabi. See our wills and powers of attorney page for our fees, or download the free Will & POA checklist to get ready for your appointment.