What if my common law spouse dies without a Will?
When someone dies without a Will, their estate is distributed according to Ontario’s intestacy laws as set out in the Succession Law Reform Act (SLRA). The deceased’s estate would consist of those assets that were solely owned by the deceased at the date of their death plus those assets that were payable to their estate such as life insurance or RRSP’s. Generally speaking, assets held jointly with a spouse and assets payable to a named beneficiary would not form part of the estate.
Under Ontario’s intestacy laws, only a legally married spouse is given the right to receive a share of a deceased spouse’s estate. So, in other words, a common law spouse does not have an automatic right to receive any of the estate of their deceased common law spouse.
Under Ontario’s SLRA, if the deceased was survived by a married spouse and one child, the surviving married spouse receives $200,000 (the ‘preferential share’) plus half of the remainder of the estate; the other half goes to the child. If the deceased was survived by a married spouse and two or more children, the surviving married spouse receives the $200,000 preferential share plus one-third of the remainder of the estate with the other two-thirds being divided equally among the surviving children. Note that a surviving married spouse could include a spouse from whom the deceased was separated but not divorced. It does not, however, include a common law spouse.
Is there anything a common law spouse can do?
Although a common law spouse does not have the automatic right to share in the estate of a deceased spouse, there may be other remedies available to the surviving spouse. These include equitable remedies, such as unjust enrichment and constructive trust, and dependant’s support.
If you are living in a common law relationship, it is important to be aware that you do not enjoy the same rights as married spouses when it comes to estate law. With the help of an experienced estate planning professional, you should ensure a full understanding of your rights and plan accordingly. As always, there is no replacement for proper planning.
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