Cecily Zamora
A common-law spouse does not have the same rights as a legally married spouse. In the event of the latter's death, a common-law spouse is not automatically entitled to their inheritance or property. However, this depends on the region and its succession laws. For instance, in British Columbia, Manitoba, Saskatchewan, and the Northwest Territories, a common-law partner can inherit their spouse's estate if they died intestate. In Ontario, a common-law spouse can file a claim against the estate in two ways: a dependency claim or a claim for unjust enrichment. In the case of a will, a common-law spouse can be named as a beneficiary and receive an inheritance.
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What You'll Learn
Common-law spouses are not automatically entitled to inheritance
In the context of wills and estates, a spouse can be defined as someone who has lived with their partner in a "marriage-like relationship" for at least a year. However, common-law spouses are not treated the same as married spouses under the law and do not automatically have the same common-law property division rights.
In Ontario, if a common-law spouse dies intestate (without a will), the surviving spouse will not inherit any part of the estate and is completely omitted. Under the Ontario Succession Law Reform Act (SLRA), married and common-law spouses are treated differently. A legally married spouse has automatic rights to their deceased spouse’s property. If a common-law spouse dies without a will, or does not adequately provide for their common-law spouse in their will, there is no automatic right to an inheritance, or to property through an equalization payment.
However, depending on the facts and circumstances, a surviving common-law spouse can file a claim against the estate in two ways: filing a dependency claim or filing a claim for unjust enrichment. To receive support as a dependant, a common-law spouse must make a dependant support claim by filing a Notice of Application with the Court. A claim for support may be made based on financial need, or on legal, or moral and ethical obligations, and must be supported with an Affidavit and documented evidence provided by the spouse. If the Court decides that the person is a dependant spouse, has a legitimate need for support, and that the deceased did not provide adequate provision for support, the Court may order a certain amount of money to be paid to the spouse out of the estate. A judge can award a lump-sum payment, periodic payments, or a transfer of a specific asset to a surviving common-law spouse.
In Canada, common-law partners can only inherit intestate estates (estates without a will) in British Columbia, Manitoba, Saskatchewan, or the Northwest Territories. If you and your partner meet the criteria for common laws in your region, and live in one of these provinces, you will be considered spouses and have inheritance rights to each other’s estates.
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Common-law spouses can file a dependency claim
In Ontario, if a common-law spouse dies without a will, the surviving spouse will not automatically inherit any part of the estate. However, a surviving common-law spouse can file a dependency claim or a claim for unjust enrichment.
To be considered a dependant, the surviving common-law spouse must prove that they were receiving support from their deceased spouse or that they had a legal right to receive support from them before they died. A claim for support may be made based on financial need or on legal, moral, and ethical obligations, and must be supported by an affidavit and documented evidence. If the court decides that the person is a dependant spouse, has a legitimate need for support, and that the deceased did not provide adequate support, the court may order a certain amount of money to be paid to the spouse out of the estate. A judge can award a lump-sum payment, periodic payments, or a transfer of a specific asset to a surviving common-law spouse.
In British Columbia, Manitoba, Saskatchewan, or the Northwest Territories, common-law partners can inherit intestate estates (estates without a will). If a couple has a valid will in place and subsequently marries or forms a civil partnership, the will is automatically revoked unless the document states that it was made in expectation of marriage or civil partnership.
In the context of wills and estates, a spouse includes a person who lived with the deceased for at least two years in a marriage-like relationship immediately before their death. The Canada Pension Plan provides three kinds of survivor benefits, which can be claimed by common-law spouses who lived together for at least a year before their spouse's death.
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Common-law spouses can file a claim for unjust enrichment
In Ontario, if a common-law spouse dies intestate (without a will), the surviving spouse is not automatically entitled to any part of their estate. However, a common-law spouse can file a claim for unjust enrichment. Unjust enrichment is a legal term that refers to a situation where one party has been unjustly enriched at the expense of another. This typically occurs in a contractual agreement when one party fulfils their part of the agreement, but the other party does not.
To successfully claim unjust enrichment, a claimant must demonstrate a causal connection between their contributions and the acquisition, preservation, maintenance, or improvement of the disputed property. For example, if a claimant contributed financially to their partner's property but was not compensated when the property was later sold, they may be able to file a claim for unjust enrichment.
In the context of family law, an unjust enrichment claim may arise when one spouse has benefited from the other spouse's contributions without providing compensation. This can include contributions to their partner's career, assets, or finances, even if the relationship was short-lived.
It is important to note that the laws regarding common-law spouses can vary depending on the specific jurisdiction and the definition of "spouse" under different laws. In some cases, a common-law spouse may need to prove that they were in a marriage-like relationship for a certain period, such as one or two years, to be recognized as a spouse and have certain rights.
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Common-law spouses can receive pension and survivor benefits
In Ontario, if a common-law spouse dies intestate (without a will), the surviving spouse will not inherit any part of the estate. However, a surviving common-law spouse can file a claim against the estate in two ways: filing a dependency claim or filing a claim for unjust enrichment. A judge can award a lump-sum payment, periodic payments, or a transfer of a specific asset to a surviving common-law spouse.
To qualify for the survivor's pension, a common-law partner must have lived with the deceased contributor in a conjugal relationship for at least one year. The survivor benefit is usually equal to half of the basic pension. If a couple gets married after retirement, the surviving spouse would not usually receive a survivor benefit, but they can choose to provide a benefit to their spouse by reducing their own pension.
The Canada Pension Plan provides three kinds of survivor benefits. To receive these benefits, the common-law spouse must apply to the administrator of the pension plan. The common-law spouse must have lived with the deceased for at least one year before their death.
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Common-law spouses can inherit with a will
In the context of wills and estates, a spouse includes a person who you lived with for at least two years in a marriage-like relationship immediately before they died. Common-law spouses are not treated the same as married spouses under the law and do not automatically have the same common-law property division rights.
In Ontario, if a common-law spouse dies intestate (without a will), the surviving spouse will not inherit any part of the estate and is completely omitted. However, depending on the facts and circumstances, a surviving common-law spouse can file a claim against the estate in two ways: filing a dependency claim or filing a claim for unjust enrichment. If a common-law spouse was dependent on the deceased and the deceased did not adequately provide for them in a will, the common-law spouse could be entitled to file a dependency claim. This would be done by filing an application against the estate in court. A judge can award a lump sum, a periodic payment, or a transfer of a specific asset to a surviving common-law spouse.
In common-law states, ownership is determined by whose name is on the title (for real estate or a car, for example). If only one spouse's name is on the deed of a home, that spouse owns the home, even if the other spouse actually paid for it. If the title doesn’t apply to the type of personal property in question, ownership is determined by who purchased the property. A spouse is not automatically entitled to a 50% interest in property acquired during the marriage.
Most common-law states protect a surviving spouse from complete disinheritance with an inheritance law that allows them to claim one-third to one-half of the decedent’s property. In some states, the amount a spouse can inherit increases with the number of years of the marriage. A spouse can choose to leave less than their state’s inheritance law allows, but the surviving spouse can go to court to claim they should receive a higher amount.
Without a will, inheritance is based on the succession laws of your province or territory, which prioritize legal spouses, children, and other family members. With a will, you can choose anyone you want to inherit your assets, which could include common-law partners, friends, family members, or charities. Common-law partners can only inherit intestate estates (estates without a will) in BC, Manitoba, Saskatchewan, and the Northwest Territories. For all other regions, the common-law partner has no inheritance rights without a will.
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Frequently asked questions
A common-law wife is someone who has lived in a "marriage-like relationship" for a certain period, which varies by region. For example, in Canada, a couple must have lived together for at least one year, while in the UK, it is three years.
No, common-law spouses do not have the same rights as legally married spouses. They are not automatically entitled to their partner's estate and do not have the same inheritance tax benefits.
A common-law wife can inherit from her spouse's estate if her partner dies intestate (without a will) in specific regions, such as British Columbia, Manitoba, Saskatchewan, or the Northwest Territories. She can also inherit if her partner names her as a beneficiary in their will.
A common-law wife may have legal recourse if she is either left out of her spouse's will or not adequately provided for. She can file a dependency claim or a claim for unjust enrichment based on her financial contribution to the relationship. A judge may award her a lump sum, periodic payments, or a specific asset.
