Can a Common-Law Partner Claim Support From an Estate in Ontario?

When a partner dies without a will, many people assume the surviving common-law partner inherits. In Ontario, that is not how the intestacy rules work. That can leave a partner who lived with and depended on the deceased with nothing from the estate.

There is another route. The Succession Law Reform Act (SLRA) lets certain dependants ask the court for support from the estate. This article explains who can apply, the deadline, what the court looks at and how the estate is protected while the claim is decided.

Why there is no automatic inheritance

A common-law spouse does not inherit under the SLRA if there is no will, because outside Part V the word "spouse" has the Family Law Act s. 1 meaning, which covers married spouses only.

For a married spouse, the rules are different: with no issue, the spouse takes the whole estate, and where there is issue the spouse first takes a preferential share set by regulation. Those entitlements do not reach an unmarried partner. The married-spouse separation rules in the SLRA are likewise about married spouses, so they are not the test for a common-law partner.

Who can apply for dependant support

For dependant support under SLRA Part V, "spouse" takes the wider Family Law Act s. 29 meaning. It includes unmarried partners who cohabited for 3 years or who had a child in a relationship of some permanence.

Meeting the definition is not enough on its own. A "dependant" includes a spouse the deceased was supporting, or was legally obliged to support, immediately before death.

• The deceased must have been supporting you, or been legally obliged to support you, immediately before death.
• The deceased must not have made adequate provision for your proper support.

What the court can order and what it weighs

If the deceased did not make adequate provision for the proper support of their dependants, the court may, on application, order support out of the estate.

In setting support, the court considers several factors. These include your contributions to the deceased's welfare, including indirect and non-financial contributions, and, for a spouse, how long you cohabited. Contributions such as caring for the household or the deceased can therefore matter, not just money.

Deadlines, joint assets and protecting the estate

An application may not be made more than six months after the grant of letters probate of the will or letters of administration. The court may allow a late application at any time, but only for the part of the estate not yet distributed on the date of the application.

The estate for this purpose can be larger than what passes under the will. Certain transactions are counted as part of the estate for a dependant support claim, including money in joint accounts with others, property held in joint tenancy and life insurance on the deceased's life that the deceased owned.

Once notice of the application is served, the personal representative must not distribute the estate until the court disposes of the application, unless everyone entitled to apply consents or the court orders otherwise. Reasonable advances for support may still be made to dependants who are beneficiaries.

Different laws, different definitions

Being a common-law partner for one purpose does not settle it for another. The tests differ by law.

So you might be a common-law partner for tax or immigration and still need to meet the 3-year or child test for an estate claim.

What to do next

• Note the date of the grant of probate or letters of administration, since the six-month period runs from it.
• Gather proof of how long you lived together and of how the deceased supported you, such as shared bills, leases and bank records.
• List jointly held accounts, joint-tenancy property and insurance the deceased owned, as these may count toward the estate.
• Speak with a lawyer promptly, because timing and the status of the estate affect what you can claim.

Frequently asked questions