Does a Common-Law Partner Inherit If There Is No Will in Ontario?

Losing a partner is hard enough without finding out that the law treats your relationship differently from a marriage. If you lived with someone for years and they died without a will, you may assume you inherit. In Ontario, that is not how the default rules work.

This article explains why a common-law partner does not inherit on an intestacy, how that compares with a married spouse, and the routes that can still be open to you. The details turn on the facts, so a lawyer can confirm how they apply to your situation.

Why a common-law partner gets nothing when there is no will

When someone dies without a valid will, the Succession Law Reform Act decides who inherits. A common-law spouse does not inherit under that Act if there is no will, because outside Part V the word "spouse" takes its meaning from section 1 of the Family Law Act, which covers married spouses only.

That definition covers two people who are married to each other, or who entered into a marriage that is voidable or void. It does not include unmarried partners. Living together for decades does not change this for inheritance on an intestacy.

What a married spouse receives, for comparison

The contrast is sharp. If a person dies without a will leaving a married spouse and no children or other descendants, the spouse is entitled to the whole estate. If there are descendants, the spouse first takes a preferential share set by regulation. The amount of that share is set out in the regulation, so check the current figure rather than relying on memory.

There is also an exception for married spouses who were separated at the time of death: the intestacy entitlements for spouses do not apply to them. That rule applies to married spouses and should not be read as applying to common-law partners.

Routes that may still be open to a surviving partner

Not inheriting under the intestacy rules does not always mean being left with nothing. Two routes are worth knowing about.

• Jointly owned property. Joint tenancy is co-ownership with a right of survivorship, so the survivor takes the deceased's share. Under a tenancy in common, each owner holds an undivided interest that does not end on death, so there is no right of survivorship.
• Dependant support. The court can order support out of the estate if the deceased did not make adequate provision for the proper support of their dependants.
• Be careful with mortgages. In the land titles system, a charge registered by fewer than all the joint tenants does not automatically sever the joint tenancy, and whether the owners intended to sever is a question of fact for the courts.

How a home or account was held is often the first thing to check, because it may decide what passes outside the estate altogether.

Dependant support claims under Part V

For dependant support, "spouse" has a wider meaning. It takes the Family Law Act section 29 meaning, so it includes unmarried partners who cohabited for three years or who had a child together in a relationship of some permanence. A dependant includes a spouse the deceased was supporting, or was legally obliged to support, immediately before death.

The court considers, among other factors, the dependant's contributions to the deceased's welfare, including indirect and non-financial contributions. For a spouse, it also considers how long they cohabited.

What to do next

Timing matters, so act early. If you are a surviving partner, or you are the person administering an estate with a partner in this position, these steps can help.

• Find out whether there is a will and whether probate or letters of administration have been granted, since the six-month period runs from that grant.
• Gather proof of how long you lived together and of any child you had together.
• Collect records of how your home, bank accounts and investments were held.
• List life insurance policies and who owned them.
• Note any financial support the deceased was providing to you before death.
• Speak with a lawyer promptly about a dependant support claim.

For the future, a will and a cohabitation agreement are the main ways to plan ahead. Unmarried partners who are cohabiting, or intend to, may make a cohabitation agreement about their rights and obligations. It must be in writing, signed and witnessed to be enforceable.

Frequently asked questions