Common-Law Partners and Joint Property After a Death in Ontario

You and your partner bought a home together, or shared bank accounts, but never married. Now one of you has died, or you are planning ahead, and you want to know whether the survivor is protected.

The short answer is that joint ownership can protect you, but only if the asset was actually held in the right way. Several rights that married spouses have do not extend to unmarried partners. This article explains the difference in general terms.

Survivorship: why joint ownership can bypass the estate

When land is held as joint tenants, the deceased owner's interest passes straight to the surviving owner. It does not go into the estate, and it does not follow the will.

This is why a surviving partner on a true joint tenancy usually does not need a Certificate of Appointment of Estate Trustee just to deal with the house. At the land registry, the survivor can apply to have the deceased owner's name removed from the parcel register, which is a land registry step and not a probate application.

Two names on title do not always mean survivorship

Land granted to two or more people is presumed to be held as tenants in common unless the document shows on its face that they take as joint tenants. A tenant in common's share does not pass by survivorship; it goes through the deceased's estate.

For this rule, a spouse includes two people living together in a conjugal relationship outside marriage. Common-law partners therefore hold as joint tenants only if the deed says so. Reading the deed carefully matters.

If the partners both die at the same time, or it is uncertain who survived, joint tenants and joint account holders are generally deemed to hold as tenants in common, and each share passes through that person's own estate.

Rights that depend on marriage

For property division and the equalization election, a spouse means someone who is married to the other person. Unmarried partners cannot elect equalization of net family property. A married survivor may be entitled to half the difference if the deceased's net family property was larger; an unmarried survivor has no such option.

The Succession Law Reform Act uses the same married-only definition, except in Part V on support. So the rules that give a married spouse a share when there is no will are not a safety net for an unmarried partner.

Dependant support: the main route for an unmarried partner

If the deceased did not make adequate provision for the proper support of a dependant, the Superior Court of Justice may order adequate provision out of the estate. For this purpose, spouse includes unmarried partners who cohabited continuously for at least three years, or who are in a relationship of some permanence and are the parents of a child.

For a support claim, certain joint assets are deemed part of the net estate, including joint bank deposits and property held by the deceased and another as joint tenants. For joint deposits, only the part that belonged to the deceased counts, and the person who was the other party must prove their own contribution.

An application cannot be made more than six months after the certificate of appointment is granted. The court may allow a later application for any part of the estate still undistributed.

Practical next steps

• Get a copy of the parcel register through OnLand to see exactly how title is held; a fee applies.
• Find the deed wording and any bank account documents; the bank sets its own documentation requirements.
• Note the date of death and the date any certificate of appointment is granted, so you can track the six-month support deadline.
• Ask an accountant about tax: property can roll over to a surviving common-law partner who is resident in Canada, subject to conditions.
• Speak to a lawyer early if the estate may be distributed soon, since distribution can limit what remains to claim against.

Frequently asked questions