Common-Law Partner Dies Without a Will in Ontario: Your Options

Losing a partner is hard enough without discovering that there is no will. Many people assume that years of living together gives them the same position as a married spouse. In Ontario, that is not how inheritance works when someone dies without a will.

This article explains what dying without a will (called dying intestate) means for an unmarried partner, and what options may still be open to you. The details depend on your facts, so treat this as a starting point and not a substitute for advice.

Why a common-law partner does not inherit automatically

When someone dies without a valid will, the Succession Law Reform Act decides who inherits under its intestacy rules. For those rules, "spouse" has the Family Law Act meaning, which covers married spouses only. The general Family Law Act definition reaches two people who are married to each other, or who entered a void or voidable marriage in good faith.

The result is blunt: a common-law partner does not inherit under the intestacy rules, no matter how long the couple lived together. That can be a shock if the home, the savings and the daily life were shared.

The door that stays open: dependant's support from the estate

A different part of the same Act works differently. A qualifying common-law spouse can apply for dependant's support from the estate. In Part V of the Succession Law Reform Act, "spouse" takes the Family Law Act s. 29 meaning.

Under s. 29, that includes two unmarried people who cohabited continuously for at least three years, or who were in a relationship of some permanence and are the parents of a child. If you have a child together, the three-year period is not required, as long as the relationship had some permanence.

Other money and property that may be in play

Inheritance is only one piece. Several other entitlements use their own definitions of a partner, so you may qualify for some even though you do not inherit.

• Workplace pension: under the Pension Benefits Act, a spouse includes two unmarried people living together in a conjugal relationship for at least three years, or in a relationship of some permanence if they are parents of a child. If the member dies before the pension starts, the person who is the spouse on the date of death is entitled to the pre-retirement death benefit.
• Canada Pension Plan survivor's pension: a common-law partner is someone who lived with the contributor in a conjugal relationship for at least one year.
• Property you own or helped pay for: unmarried partners are not legally required to split property acquired while together, and furniture and household items belong to the person who bought them.
• Contribution to the other person's property: a partner who contributed to property the other owns may have a right to part of it. Which time limit applies to this kind of claim depends on the facts, and the basic two-year period under the Limitations Act, 2002 runs from the day the claim was discovered.

Common-law partners also have no statutory right to share or stay in a home owned by the other partner. If the home was in your partner's name alone, speak with a lawyer soon about your position.

How a cohabitation agreement or will would have helped

Unmarried people who are cohabiting, or intend to cohabit, may make a cohabitation agreement covering property, support and other matters, including on death. It is unenforceable unless it is in writing, signed by the parties and witnessed. If your partner signed one, find it early, because it may change the picture.

If you are reading this for your own planning, the lesson is simple: a current will and, where it fits, a cohabitation agreement are the clearest ways to protect an unmarried partner.

What to do next

• Find out whether a will, a cohabitation agreement or beneficiary designations exist, and who is applying to manage the estate.
• Write down the facts of your relationship: when you started living together, shared finances, any children, and how others saw you as a couple.
• Note the date any grant of letters probate or letters of administration is issued, since the six-month support deadline runs from it.
• Collect pension, benefit and insurance details for your partner, and check each plan's own definition of spouse.
• Get legal advice early, especially about the home, any property you helped pay for, and whether you meet the s. 29 test.

Whether you qualify as a spouse can turn on detailed facts, so a lawyer can confirm your position before time runs out.

Frequently asked questions