Common-Law Partner Inheritance Rights in Ontario

Losing a partner is hard enough without discovering that the law does not treat an unmarried partner the way it treats a spouse. In Ontario, the answer depends on which law and which asset you are asking about.

This article walks through where a common-law partner is counted as a spouse, where the answer needs checking, and the claims that may be available.

It depends on which law applies

There is no single definition. Each statute defines spouse for its own purposes, so a partner can qualify under one and not another.

Because the tests differ, a partner of two years might qualify under one law and not another. The facts of the relationship matter.

Pensions, insurance and registered plans

• Pensions: under the Pension Benefits Act, which covers Ontario-registered pension plans only, a spouse is entitled to the pre-retirement death benefit ahead of any designated beneficiary when a member dies before the pension starts. Federally regulated plans and plans in other provinces follow different rules, so it is worth confirming which rules govern the plan.
• Pension beneficiaries: a designated beneficiary, and then the estate, takes only if no spouse is entitled. A spouse living separate and apart on the date of death has no entitlement.
• Pension waiver: a spouse may waive the benefit by delivering a written waiver in the approved form, and can cancel it by signed notice before the member dies.
• Life insurance: when a beneficiary is designated, the money does not form part of the estate or the insured's creditors' claims. Common-law partners are in the family class for creditor protection.
• RRIFs: if the contract or will names the spouse or common-law partner as successor annuitant, the RRIF continues and the partner reports the payments.

If the partner was not named on the forms, that can limit what is available. A lawyer can explain the options on the specific plan.

Tax rollovers that may help

Capital property is generally treated as disposed of at fair market value just before death. For property passing to a surviving spouse or common-law partner, or to a qualifying testamentary spousal trust, there may be no capital gain or loss on the final return, provided the property vests in the spouse within 36 months of death.

For an RRSP, no amount is included on the deceased's return if the spouse or common-law partner is the sole designated beneficiary and all the property is transferred directly to a qualifying plan for them by December 31 of the year after the year of death. An accountant can confirm the current rules and deadlines.

The estate itself and support claims

If there was a will, its terms apply. If there was none, whether a common-law partner shares under the intestacy rules should be confirmed with a lawyer, because that depends on the statute and the facts. The rules giving a spouse a share also do not apply where spouses were separated at death, for separation events on or after January 1, 2022.

A surviving partner may also be able to claim as a dependant. For that claim, life insurance owned by the deceased and amounts payable under a plan designation are deemed part of the net estate. The application generally cannot be made more than six months after the grant of letters probate or administration, though the court may allow a later one against undistributed property.

What to do next

• Gather proof of the relationship, such as shared address, joint accounts and tax filings.
• Ask the plan administrator and insurer who is named on each policy and plan.
• Note the date any grant is issued, because the support deadline runs from it.
• Do not accept a distribution plan that leaves you out without legal advice.
• Beware of anyone asking an upfront fee to release an inheritance.

Frequently asked questions