Common-Law Partner Rights When a Spouse Dies Without a Will in Ontario

You may have lived with your partner for many years, shared a home and finances, and then lost them without a will. Many people assume that common-law status gives the same inheritance rights as marriage. In Ontario, for intestacy, it does not.

This article sets out what an unmarried partner cannot claim, and what they still can. It is general information, and the details turn on your facts, so a lawyer can confirm your position.

What you cannot claim

On an intestacy, the Succession Law Reform Act (SLRA) uses the Family Law Act meaning of spouse, which covers married people only. Ontario.ca says plainly that a common-law spouse does not inherit under the SLRA on an intestacy.

The equalization entitlement is also out of reach. Unmarried partners are not spouses for the Family Law Act s. 5(2) entitlement. That means the property-sharing claim available to a married survivor does not apply to you.

The rules in the next table show how married and unmarried survivors are treated.

Who inherits instead depends on the family. For example, when there is a spouse and children, the intestacy rules divide the estate in set shares. Where the deceased was married but separated, a separated spouse has no Part II entitlement.

Applying to administer the estate

Even though you do not inherit, you may be the person who takes charge. Without a will, the spouse or common-law partner has first right to apply for the certificate. Next, a close adult relative such as a child, parent, grandchild, sibling, or nephew or niece can apply.

There are extra steps when there is no will. The applicant must file a renunciation from every person entitled in priority or in equal right who has not joined the application, and a consent (Form 74H) from persons entitled to share in the estate who together hold a majority interest in its value. A bond is also required when the deceased had no will.

Whether taking on the role of estate trustee also gives you any share of the estate depends on your situation, so it is worth confirming with a lawyer.

Claiming support as a dependant

Your strongest route may be a dependant's support claim under SLRA Part V. An unmarried partner is within a Part V claim if they were being supported by the deceased, since spouse in Part V includes people who cohabited in a conjugal relationship. Cohabit means living together in a conjugal relationship, inside or outside marriage.

If the deceased did not make adequate provision for a dependant's proper support, the court may order support from the estate. The court looks at factors such as your assets, age and health, accustomed standard of living, the length of cohabitation, and any effect on earning capacity. It may order payments, property transfers, possession of property or a charge on property.

Generally, no such application may be made more than six months after the grant of probate or administration. This is why the timing of the estate application matters to you.

Property that never enters the estate

Some of what you share may not be part of the estate. Real property that passes by right of survivorship does not need a probate application. Assets with a named beneficiary, such as RRSPs, RRIFs and TFSAs, and jointly owned assets that pass by survivorship are generally excluded from the value used for Estate Administration Tax. If you are the named beneficiary or surviving joint owner, those assets may come to you directly.

Whether a given account, home or policy passes this way depends on how it is held, so check the title and beneficiary records.

What to do next

• Find out whether there is a will, including any later will deposited with the court
• Gather proof of your relationship and of the support the deceased provided
• Check how the home, bank accounts and policies are held and who is named
• Ask a lawyer about applying as estate trustee and about the support claim deadline
• Avoid distributing or removing estate property until you know who is entitled

Frequently asked questions