Dependant's Support Claim Against a Deceased Partner's Estate in Ontario

If your common-law partner has died and you depended on their income, you may be wondering how you will manage. Unmarried partners often learn that the law does not treat them as heirs, which makes the dependant's support claim important.

This article explains who can bring the claim, the deadline, what the claim is about in general terms, and the points that can complicate it. Every estate is different, and a lawyer can confirm how the rules apply to you.

What the claim is

On death, a qualifying common-law spouse can apply for dependant's support from the estate. The claim is made under Part V of the Succession Law Reform Act. Separately, under the intestacy rules a common-law partner does not inherit automatically, because "spouse" there means married spouses only.

Think of it as a request that the estate help support you, as a person who relied on the deceased. Whether the claim fits your situation, and how it interacts with any will, depends on the facts, so it is worth confirming with a lawyer.

Who counts as a spouse

For this claim, "spouse" has the Family Law Act s. 29 meaning. Under that section, two unmarried people qualify if they have cohabited continuously for at least three years, or if they are in a relationship of some permanence and are the parents of a child. Parents do not need three years together, provided the relationship had some permanence.

"Cohabit" means to live together in a conjugal relationship, whether the couple is married or not. Living apart does not automatically rule it out. In Climans v. Latner, 2020 ONCA 554, the Court of Appeal for Ontario upheld a finding that partners of almost 14 years who kept separate Toronto homes throughout were spouses under s. 29. The court weighed factors such as shared shelter, personal behaviour, services, social activities, economic support, children and how society saw the couple. Those questions are fact-specific, so do not assume your answer either way.

The six-month deadline

The application must be made within six months of the grant of letters probate or letters of administration. That is the formal court document that gives someone authority to deal with the estate.

The clock does not start on the date of death. It starts on the grant, so find out whether one has been issued and when. If you are unsure, do not wait to find out. Ask a lawyer to confirm the date and the steps to protect your claim.

What can help or complicate your claim

Estate claims have their own rules, and how they apply depends on your situation. Evidence of how long you lived together and whether you had a child together is sensible to gather, because the definition of spouse turns on those points. Evidence of your finances and your reliance on your partner is worth collecting too.

• Proof of the relationship: leases, joint accounts, tax filings, photographs and messages that show you lived together as a couple.
• Proof of dependence: how household expenses were shared and how much you relied on your partner's income.
• Children: both the parenting history and any child support arrangements.
• Agreements: a cohabitation agreement can cover support on death and the ownership or division of property. It is unenforceable unless it is in writing, signed by the parties and witnessed. How any agreement affects an estate claim depends on its wording and your situation, so it is worth confirming with a lawyer.

Other entitlements to check at the same time

• Pension Benefits Act: a spouse includes unmarried people living together in a conjugal relationship for at least three years, or in a relationship of some permanence if they are parents of a child. If the member dies before the pension starts, the spouse on the date of death is entitled to the pre-retirement death benefit, and this can include a common-law spouse who meets that definition. However, a married spouse living separate and apart from the member on the date of death has no entitlement to the pre-retirement death benefit.
• Canada Pension Plan survivor's pension: a common-law partner is someone who lived with the contributor in a conjugal relationship for at least 1 year.
• Property you contributed to: a partner who contributed to property the other owns may have a right to part of it. The basic two-year limitation period under the Limitations Act, 2002 may be relevant to some such claims, but which period applies depends on the facts.

What to do next

• Find out whether a will exists and whether a grant of letters probate or letters of administration has been issued, and note the date.
• Collect evidence of how long you lived together and whether you had a child together.
• List your income, expenses and the ways you depended on your partner.
• Locate any cohabitation agreement or other domestic contract.
• Ask the plan administrator about pension and survivor benefits.
• Speak with a lawyer promptly so the six-month deadline is not missed.

Frequently asked questions