Cecily Zamora
In common law relationships, inheritance rights differ from those of married couples. While a surviving spouse may have a claim to their deceased partner's estate, common-law partners are generally not automatically entitled to inherit their partner's estate if they die without a will. Intestacy laws, which vary by region, outline how an estate is distributed in the absence of a will. Common-law partners can only inherit intestate estates in specific regions, such as British Columbia, Manitoba, Saskatchewan, and the Northwest Territories. To ensure your common-law partner receives an inheritance, creating a will that names them as a beneficiary is essential. Additionally, estate planning can help protect your inheritance and that of your loved ones. Understanding your rights and obligations may require consulting a lawyer familiar with the laws in your specific jurisdiction.
| Characteristics | Values |
|---|---|
| Common law inheritance | Common law partners can only inherit intestate estates in BC, Manitoba, Saskatchewan, and Northwest Territories |
| Marriage inheritance | Inheritance is considered separate property and not subject to division in a divorce |
| Spousal support rights | Common-law spouses do not have access to alimony |
| Estate planning | Creating a will ensures your common-law partner receives an inheritance |
| Property rights | Common-law spouses do not have the same property division rights as married spouses |
| Dependency claim | A surviving common-law spouse can file a dependency claim if they were dependent on the deceased |
| Jurisdiction | Inheritance laws and spousal entitlements vary by region and jurisdiction |
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What You'll Learn
Common-law inheritance rights in British Columbia, Manitoba, Saskatchewan, and Northwest Territories
In British Columbia, Manitoba, Saskatchewan, and the Northwest Territories, common-law partners are recognised as spouses and have inheritance rights to each other's estates. However, it is important to note that there are no specific common-law inheritance laws; rather, succession rights depend on the legal definition of the term "spouse".
In these regions, if a person dies without a will (intestate), their estate will generally be distributed according to provincial or territorial succession laws, which prioritise legal spouses, children, and other family members. In the context of common-law relationships, to be recognised as a spouse for inheritance purposes, couples must meet certain criteria, such as the duration of their relationship, whether they have children together, and whether their province or territory recognises common-law partnerships.
In British Columbia, Manitoba, and the Northwest Territories, if a couple has not yet met the requirements to be considered common-law partners at the time of their partner's death, the surviving partner would not be entitled to any inheritance without a will. However, if the deceased person has a will, their common-law partner can be named as a beneficiary and receive all or a portion of the estate.
In Manitoba, if a person dies leaving both a spouse and one or more common-law partners, the one whose relationship with the deceased was most recent will have priority. However, this does not prevent the other spouse or common-law partner from applying for an accounting and equalisation of assets under The Family Property Act. Additionally, in Manitoba, spouses and common-law partners may be eligible for survivor's pension benefits under the Canada Pension Plan and the provincial Pension Benefits Act.
In Saskatchewan, if a person dies without a will, the surviving spouse will inherit the entire estate if all children are also their children. Where there are children from a different relationship, the surviving spouse will receive a preferential share, and the remainder of the estate will be split between the spouse and the children. Dependants of the deceased, including common-law spouses, may also have a claim under The Dependants' Relief Act, 1996, if the will does not make adequate arrangements for their support.
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Common-law inheritance rights in Ontario
In Ontario, common-law partners do not have the same inheritance rights as married spouses. 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.
The Ontario Succession Law Reform Act (SLRA) governs how property will be distributed to surviving relatives if someone dies without a will, or intestate. Under the SLRA, a common-law spouse can make a claim in court to seek support from the estate as a dependant. A judge can award a lump sum, a periodic payment, or a transfer of a specific asset to a surviving common-law spouse.
The Ontario Family Law Act (FLA) and the SLRA set out the legislative structure to protect the inheritance rights of legally married surviving spouses. Under the FLA, a surviving married spouse is entitled to seek an equalization payment from the estate of the deceased spouse. This means that the surviving married spouse can receive half of the difference between their net family property and that of the deceased's spouse.
To protect your common-law partner's legal claim to inheritance, you can name them as a beneficiary in your will. It is recommended to consult a lawyer to navigate the complex laws surrounding property ownership and division.
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Common-law inheritance rights in Quebec
In Quebec, common-law partners are not automatically entitled to their partner's estate if the partner dies without a will. De facto couples do not have the same inheritance rights as couples that are married or in a civil union. Common-law status is referred to as de facto status in Quebec, and it is notably different from other marital statuses such as marriage, civil union, and being single. To be considered a de facto union in Quebec, partners must live together for at least two years, and this requirement remains the same even if the couple has children.
If you are in a de facto relationship in Quebec, you will not be legally recognised as your spouse's heir. However, if you wish to leave some of your property to your de facto partner, you can specify your wishes in a legal will. In the absence of a will, your property will be divided between your heirs according to Quebec's succession law, outlined in the Civil Code of Quebec. This typically involves distributing assets to surviving spouses, children, parents, and siblings, with the closest relatives receiving a larger share of the estate.
It is important to note that each person must make and sign their own will, and couples cannot share a will. Additionally, notarial wills are the only type of will in Quebec that does not require probate. To ensure your wishes are carried out, it is recommended to create a will, naming your common-law partner as a beneficiary, and consider other estate planning tools such as power of attorney documents and asset lists.
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Common-law inheritance rights in Alberta
In Alberta, a common-law relationship is called an "Adult Interdependent Partnership" (AIP) under the 2003 Adult Interdependent Relationships Act (AIRA). Couples qualify as an AIP if they live together for three years, have a child, or sign an Adult Interdependent Partner agreement.
AIPs share similar rights to married couples for property, inheritance, and decision-making. Under the AIRA, AIPs are afforded similar support, property rights, and responsibilities as married partners. This means that AIPs are entitled to spousal support, property division, and inheritance in much the same way as a married spouse would be.
However, it is important to note that inheritance is typically considered separate property, belonging exclusively to the inheritor. If you receive an inheritance, you are not obligated to share it with your partner, as long as it is not commingled with marital assets. If the inheritance is used to purchase property or assets jointly with your partner, then it could become a shared asset.
To ensure that your inheritance is protected, it is recommended to seek legal advice and create a cohabitation agreement or a will that outlines your wishes. By writing a valid, legal will, you can ensure that your assets are distributed according to your wishes.
Additionally, the Wills and Succession Act sets out who can inherit an estate in Alberta. If there are no descendants, the surviving partner inherits the entire estate. If there are descendants who are also the descendants of the surviving partner, the partner still gets 100% of the estate. If there are descendants but they are not the surviving partner's descendants, the partner gets 50% or $150,000 (whichever is greater), and the descendants get the rest.
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Protecting your common-law partner's legal claim to inheritance
In most places, common-law partners are not automatically entitled to their partner's inheritance if their partner dies without a will. Common-law relationships are different from marriages, which are lawful unions formalised by a legal process and a marriage certificate. Therefore, common-law partners are not treated the same as married spouses under the law and do not automatically have the same common-law property division rights.
However, there are a few ways to protect your common-law partner's legal claim to your inheritance:
- Create a will: The best way to ensure that your common-law partner inherits your assets is to create a will that explicitly names them as a beneficiary. This allows you to choose who inherits your assets, including your common-law partner, and ensures that your wishes are carried out.
- Legally register your relationship: In some provinces, such as Alberta and Manitoba, you can register your common-law relationship, which may provide additional legal protections for your partner in the event of your death.
- Create a cohabitation agreement: A cohabitation agreement can outline how your property will be divided in the event of your death or the end of your relationship. While this may not guarantee your partner's inheritance, it can provide clarity and help protect their interests.
- Seek legal advice: Laws regarding inheritance and common-law relationships can vary by jurisdiction. Consulting with a lawyer can help you understand your specific rights and obligations and ensure that you take the necessary steps to protect your partner's claim to your inheritance.
- Include your partner in estate planning: Create an estate plan that includes a will, power of attorney documents, and an asset list. This will help protect your partner's claim to your inheritance and ensure that your wishes are carried out.
By taking these steps, you can help protect your common-law partner's legal claim to your inheritance and ensure that they are provided for in the event of your death.
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Frequently asked questions
Common-law partners are not treated the same as married spouses under the law and do not automatically have the same property division rights. If you are living with your common-law partner and they pass away without a will, you may not inherit anything. However, if you live in British Columbia, Manitoba, Saskatchewan, or the Northwest Territories, your common-law partner can inherit your intestate estate. To ensure your partner receives an inheritance, you can name them as a beneficiary in your will.
Inheritance is typically considered separate property and isn't subject to division in a divorce. However, if the inheritance was handled as marital assets or used to acquire joint property, it may become subject to division. Your spouse may be entitled to a portion of your inheritance if it was acquired during your marriage or if you do not have a prenuptial agreement in place.
If your common-law partner dies intestate (without a will), you may not inherit any part of their estate. However, depending on the circumstances, you can file a claim against the estate by filing a dependency claim or a claim for unjust enrichment.
