Common-Law Partner Died Without a Will in Ontario: What Are Your Rights?

Losing your partner is hard enough. Learning that they left no will, and that you were never married, can add a second shock: the law may not treat you the way you expected.

This article explains where you stand in Ontario. You do not receive an automatic share, but you may have two other routes: applying to manage the estate, and asking the court for support. It also explains who inherits in your place, and the deadlines to watch.

Why you do not inherit automatically

When someone dies without a valid will, Ontario's Succession Law Reform Act decides who inherits, and the people who can inherit are the deceased's spouse and closest next-of-kin. For these rules, "spouse" has the meaning in section 1 of the Family Law Act, which covers people who are married to each other.

The result is that a common-law spouse does not inherit under the Succession Law Reform Act when there is no will. The law does give unmarried partners other rights, described below.

Route one: applying to administer the estate

Someone has to be appointed to manage the estate. The estate trustee is the only person with legal authority to manage or distribute it, and the court's certificate gives the authority to manage estate assets and pay estate debts.

On an intestacy, administration may be granted to the person the deceased was married to immediately before death, or a person living with the deceased in a conjugal relationship outside marriage immediately before death, or to the next of kin, or to both. In practice, the spouse or common-law partner usually has the first right to apply, and close adult relatives such as a child, parent, grandchild, sibling or nephew or niece can apply after them.

This right is not absolute. The court is not obliged to grant administration to the person otherwise entitled, and where necessary or convenient it may appoint anyone it thinks fit, on security the court directs.

• If you apply, you file a Consent to Applicant's Appointment as Estate Trustee (Form 74G, Part B).
• Anyone entitled to priority who is not joining the application must sign a Renunciation (Form 74G, Part A).
• A bond is generally required when the deceased died without a will. There is an exception for a small estate, unless a beneficiary is a minor or incapable, and a judge may reduce or dispense with the bond.

Being appointed does not make you an heir. It gives you the job of managing the estate for the people who are entitled to it.

Route two: a dependant support claim

Part V of the Succession Law Reform Act lets a dependant apply to court for support from the estate if the deceased did not make adequate provision for them. For this Part, "spouse" takes the meaning in section 29 of the Family Law Act.

Under that section, unmarried partners count as spouses if they cohabited continuously for at least three years, or were in a relationship of some permanence and are the parents of a child. Whether you qualify, and what support would be adequate, depends on your facts, so this is a point to review with a lawyer.

The six-month deadline and the freeze on distribution

A dependant's support application cannot be made after six months from the grant of letters probate or letters of administration. The clock runs from the grant, not from the date of death, so a grant that is issued months after the death moves your deadline later.

There is an exception. The court may allow an application at any time for any part of the estate still undistributed on the date of the application.

Once the personal representative has been served with notice of a support application, they must not distribute the estate until the court has disposed of it, unless everyone entitled to apply consents or the court orders otherwise.

Who inherits in your place

Because you are not a spouse for intestacy purposes, the estate goes to the deceased's family under the statutory order. The estate moves down the list below only when no one in the earlier group survives.

• Children and other descendants: the property is distributed equally among the deceased's issue. If a child died first, that child's share passes to their own issue.
• Parents: if there is no spouse and no issue, the estate goes to the parents equally, or to the surviving parent absolutely.
• Brothers and sisters: if there is no spouse, issue or parent, the estate goes to the surviving brothers and sisters equally. A sibling who died first has their share go equally to their children.
• Nephews and nieces: if there is also no brother or sister, the estate goes equally to the nephews and nieces, and the children of a deceased niece or nephew do not take that person's share.
• Other next of kin: if there is no nephew or niece either, the estate goes equally to the next of kin of equal degree of consanguinity, without representation.
• The Crown: if there is no surviving relative in any of these groups, the property becomes the property of the Crown and the Escheats Act, 2015 applies.

If the deceased was still legally married to someone else, that person may count as the spouse. An exception applies if the spouses were separated within the meaning of the Act at the time of death, but only where the qualifying event, such as three years living apart or a separation agreement, happened on or after January 1, 2022. A lawyer can help confirm which applies.

What to do next

• Find out whether a will, or a later codicil or other document, exists before assuming there is none.
• Write down the dates your relationship began, when you began living together, and whether you have a child together.
• Find out whether anyone has applied to be appointed, and when a grant is issued, note the date.
• Ask the estate trustee not to distribute assets until you have taken advice, and keep a copy of any notice you send.
• Speak with an Ontario estates lawyer early, since both your priority right and your support claim depend on timing and facts.

Frequently asked questions