Common-Law Partners and Intestacy in Ontario: Why Living Together Is Not Enough

Many Ontarians live with a partner for years — sometimes decades — without getting married. It is a common and entirely valid choice. But if you or your partner dies without a will, Ontario law delivers a result that shocks most common-law couples: your partner has no automatic right to inherit anything from your estate.

This is one of the starkest gaps between popular belief and actual law. The intestacy rules for common-law partners in Ontario are unforgiving, and the consequences for the surviving partner can be severe.

The Core Rule: Common-Law Partners Have No Preferential Share

Ontario's Succession Law Reform Act (SLRA) grants a surviving spouse a preferential share off the top of the estate, plus a fraction of the residue. But the SLRA defines "spouse" narrowly for intestacy purposes. As of writing, common-law partners — regardless of how long they have lived together — are not included in that definition for the purpose of intestacy rights.

There is no "spouse equivalent" rule, no duration threshold that triggers inheritance rights, and no cohabitation agreement that changes this. If you die without a will, your common-law partner receives nothing through the estate, full stop.

So Who Does Inherit?

The SLRA's bloodline hierarchy takes over. Depending on your family situation, your estate goes to:

• Your children (if you have any), including children from prior relationships
• Your parents, if you have no children
• Your siblings, if neither parent survives you
• More distant relatives, working down the kinship ladder
• The Crown (Ontario government), if no relatives can be found

Your common-law partner, who may have shared your home, managed your finances, and raised children with you, is not on that list.

What About the Family Home?

How the home is treated depends entirely on how title is held:

Joint tenancy

If you and your partner hold the home as joint tenants, it passes to the surviving partner by right of survivorship — completely outside the estate. The intestacy rules do not affect it. Many couples hold their home this way, which can create a false sense of security about the overall estate.

Tenancy in common or sole ownership

If the home is owned by the deceased partner alone, or held as tenants in common, the deceased's share forms part of the estate and passes to relatives — not the surviving partner. The surviving partner could find themselves facing a claim from the deceased's family on the home they live in.

Claims the Surviving Partner Can Make

Although a common-law partner has no automatic inheritance right, they are not entirely without recourse:

Dependant's support claim

Under Part V of the SLRA, a dependant of the deceased — which can include a common-law partner who was financially dependent — may make a claim for support from the estate. This is a court application, not an automatic entitlement. It requires proving dependancy and is subject to the court's discretion. It is not equivalent to inheriting.

Constructive trust or unjust enrichment

If the surviving partner contributed to building an asset (worked in a family business, paid for renovations, etc.) without being compensated, they may have an unjust enrichment or constructive trust claim. These are civil litigation claims — costly, uncertain, and stressful.

Neither of these options is a substitute for a will.

Designation-Based Assets: A Partial Safety Net

The intestacy rules only govern assets that pass through the estate. If you have named your common-law partner as beneficiary on:

• Your RRSP or RRIF
• Your TFSA
• Your life insurance policy
• Your pension (where legislation permits)

...those assets pass directly to them regardless of the intestacy rules. This is why some common-law couples feel protected even without a will — but these designations must be kept current and do not cover assets that don't have a beneficiary designation (bank accounts in one name, investments held individually, personal property, etc.).

When You Have Children Together

If you and your common-law partner have children together, the children will inherit under the intestacy formula — but your partner will not, unless they are named on designated accounts. This means the assets may go into a trust for the children rather than directly to the surviving parent. The surviving parent may need court approval to access those funds for family needs.

Cohabitation Agreements: What They Cannot Do

A cohabitation agreement governs property division and support during the relationship and on separation. It does not function as a will. A cohabitation agreement cannot make your common-law partner your beneficiary on death.

Only a will can do that.

The Simple Fix: Make a Will

The solution is straightforward: make a will naming your common-law partner as a beneficiary and, if appropriate, as the executor of your estate. If you have minor children, also name a guardian. If you have substantial assets, also ensure your beneficiary designations on registered accounts and insurance are consistent with your will.

This does not need to be complicated or expensive.

Frequently asked questions