Cecily Zamora
The death of a common-law partner can result in a complex legal situation, especially if they die without a will, known as dying intestate. Intestacy rules vary depending on the jurisdiction, but generally, common-law spouses do not have the same inheritance rights as married spouses. In some cases, a common-law spouse may need to file a claim against their partner's estate to receive any assets, and they may not be entitled to live in their partner's home. If the deceased has children, they may become the sole beneficiary of the estate, and the surviving common-law spouse may need to apply for guardianship if they wish to continue caring for them. It is important to consult a lawyer to understand the specific rights and options available in this situation.
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What You'll Learn
- Common-law spouses do not automatically inherit their partner's estate
- Common-law spouses can claim for unjust enrichment or a resulting trust
- Common-law spouses can claim pension and survivor benefits
- Common-law spouses may need to go to court to apply for guardianship of their partner's children
- Common-law spouses do not have the same rights as married spouses under estate law
Common-law spouses do not automatically inherit their partner's estate
In the event of the death of a common-law partner, the surviving spouse does not automatically inherit their partner's estate. 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. They are 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.
A dependency claim can be filed if a common-law spouse was dependent on the deceased and the deceased did not adequately provide for them in a will. This would be done by filing an application against the estate in court, and a judge can award a lump sum, a periodic payment, or a transfer of a specific asset to a surviving common-law spouse.
A claim for unjust enrichment can be made by a common-law spouse on the basis that one person should not receive a financial gain at the other's expense, such as when one spouse takes care of the home or provides services without compensation from the other spouse. This claim can be remedied by the court in two ways: a constructive trust, which awards property equal to the surviving spouse's contribution, or quantum meruit, which is a monetary award based on the promise of a future award from the deceased spouse.
It is important to note that the definition of "spouse" can vary under different laws, and it is crucial to understand how a particular law defines "spouse" if your rights depend on that law. For example, the provincial Family Law Act and many other provincial laws in Canada define a "spouse" as someone who is legally married or has lived in a "marriage-like relationship" for at least two years.
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Common-law spouses can claim for unjust enrichment or a resulting trust
In the case of a common-law partner's death, the surviving spouse is not treated the same as a married spouse under the law and does not automatically inherit their partner's estate. However, a surviving common-law spouse can file a claim against the estate by filing a dependency claim or a claim for unjust enrichment or a resulting trust.
Unjust enrichment is based on the principle that one person should not receive a financial gain at the expense of another without providing proper restitution. In the context of common-law relationships, unjust enrichment may occur when one spouse contributes to the value of an asset owned by the other, such as through unpaid labour or financial contributions, resulting in the unjust enrichment of their spouse. For example, one partner may have spent their time raising children and caring for the home while the other focused on their career.
To claim unjust enrichment, the surviving spouse must prove that their contributions resulted in a valuable gain for the deceased spouse, without any legal reason for that gain, such as a contract or legal obligation. The court will then decide on the appropriate remedy, either through a monetary award or a constructive trust, which gives the claimant spouse an interest in the property.
A resulting trust is a type of claim that can be made when one spouse has made significant contributions to the property of the other, creating a right based on the principles of constructive trust or unjust enrichment. A constructive trust is an equitable remedy where the court "constructs a trust" to address the unjust enrichment of one party over another. The likelihood of the court creating a remedy in favour of the non-owner spouse increases with the length of the relationship.
It is important to note that these types of claims can be challenging to prove, and seeking legal advice is recommended. Additionally, the laws regarding common-law spouses may vary depending on the specific jurisdiction, so it is essential to understand the relevant laws in your region.
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Common-law spouses can claim pension and survivor benefits
The death of a common-law partner can result in a complex legal situation, especially regarding pensions and survivor benefits. While common-law spouses may not have the same automatic inheritance rights as married spouses, they can still claim certain benefits and entitlements. Here are the key points to consider:
Definition of a Common-Law Spouse
The definition of a "spouse" can vary depending on the specific law being considered. For example, the provincial Family Law Act in Canada defines a "spouse" as someone who is legally married or has lived in a "marriage-like relationship" for at least two years. In contrast, the Canada Pension Plan (CPP) defines a spouse as someone who has lived in a marriage-like relationship for at least one year. Therefore, it is crucial to understand the specific legal definition of a "spouse" under the relevant law when discussing pensions and survivor benefits.
Canada Pension Plan (CPP) Survivor Benefits
The CPP provides survivor benefits to the legal spouse or common-law partner of the deceased contributor. To qualify, the surviving spouse must have lived with the deceased in a conjugal relationship for at least one year. The survivor's pension is calculated based on the CPP retirement pension of the deceased and the survivor's age at the time of the contributor's death. The survivor will typically receive 60% of the contributor's retirement pension or a flat rate portion and 37.5% of the retirement pension, depending on their circumstances.
Old Age Security (OAS) and Allowance for the Survivor
The OAS is a monthly benefit for Canadians aged 65 or older, which may include the Guaranteed Income Supplement (GIS) for low-income individuals. Common-law spouses may be entitled to related benefits if they have lived with their partner for at least one year. Additionally, if a low-income individual aged 60 to 64 loses their common-law partner, they may be eligible for the Allowance for the Survivor benefit.
Social Security Survivor Benefits
In some states, common-law marriages are recognized, and individuals in such marriages may be eligible for Social Security survivor benefits. However, it is important to note that not all states recognize common-law marriages, and the eligibility for benefits may depend on the specific state's laws.
Provincial Laws and Claims
Provincial laws, such as the Ontario Succession Law Reform Act, govern the distribution of estates when a person dies without a will (intestate). While common-law spouses may not automatically inherit in these cases, they can file claims against the estate, such as dependency claims or unjust enrichment claims. These claims can result in a lump sum, periodic payments, or the transfer of specific assets to the surviving common-law spouse.
In summary, while common-law spouses may not have automatic inheritance rights, they can claim various pension and survivor benefits, depending on their specific circumstances and the applicable laws. It is always advisable to consult a lawyer to understand your rights and entitlements fully.
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Common-law spouses may need to go to court to apply for guardianship of their partner's children
When a common-law partner dies, their spouse may be entitled to pension and survivor benefits, as well as a share of their estate. However, common-law spouses do not have the same rights as married spouses under the law, and the laws regarding common-law spouses vary across different regions. For example, in Ontario, Canada, a common-law spouse is not entitled to any part of their deceased spouse's estate if they die intestate (without a will). In such cases, the estate goes to the deceased's children or other relatives.
Now, if a common-law spouse wishes to gain guardianship of their partner's children, they may need to go to court and apply for it. This is because common-law spouses do not automatically become guardians of their partner's children in the event of their death, even if the children are already living with them. The laws regarding guardianship vary across different regions, and it is important to consult a lawyer to understand the specific laws in one's region.
In some cases, the biological parent of the child may need to be notified and given an opportunity to contest the guardianship application. The court will consider the level of involvement of other guardians in the child's upbringing and take into account the views of the child. If guardianship is granted, the new guardian's rights and responsibilities will be outlined by the court, and they will be legally responsible for the child's care, including making decisions about their education, healthcare, and day-to-day needs.
It is important to note that guardianship is different from adoption, as in guardianship, the parent's rights to child custody are only temporarily taken away and can be reinstated once they are able to care for their child again. The court also stays involved and supervises the relationship until the child turns 18 years old or the guardianship ends. On the other hand, adoption permanently terminates the birth parents' rights, and the court does not remain involved once the adoption is finalized.
While it is possible to seek guardianship without legal representation, consulting an attorney experienced in guardianship or family law can be beneficial to ensure a smooth process and comply with all legal requirements. Additionally, legal aid and free confidential services provided by volunteer lawyers may be available in certain regions to assist individuals with the guardianship application process.
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Common-law spouses do not have the same rights as married spouses under estate law
While the law treats common-law relationships like married relationships in many ways, there are some differences, especially when it comes to estate law. Common-law spouses do not have the same rights as married spouses under estate law.
In the province of Ontario, if a common-law spouse dies without a will, the surviving spouse will not inherit any part of the estate. They are 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.
Unjust enrichment is an equitable principle that one person should not receive a financial gain at the other's expense. For example, when one spouse takes care of the home or provides services without compensation from the other spouse. A common-law spouse can make a claim against the estate on this basis. There must be some kind of valuable gain to the deceased at the expense of the survivor, without a legal reason for that gain. This unjust enrichment claim can be remedied by the court in two ways: a constructive trust awards property equal to the surviving spouse's contribution, and quantum meruit is a monetary award based on the promise of a future award from the spouse who died.
In the event of intestacy, the deceased's biological and adopted children can receive property and support. Whether the couple was married or unmarried does not affect their children's right to inheritance. However, if a common-law partner dies without leaving a will and you want their children to live with you, you might have to go to court to apply for guardianship of them, even if they are already living with you.
It is important to note that there are different definitions of "spouse" under different laws. If your rights depend on a particular law, it is important to know exactly how that law defines "spouse". For example, the provincial Family Law Act and many other provincial laws define a "spouse" as someone who is legally married or has lived in a "marriage-like relationship" for at least two years. The Canada Pension Plan and many other federal laws define a spouse as someone who has lived in a marriage-like relationship for at least one year.
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Frequently asked questions
In the province of Ontario, if a common-law partner dies without a will (intestate), the surviving spouse will not inherit any part of the estate. The estate will be distributed according to the Ontario Succession Law Reform Act. The Act does not include a common-law spouse under the definition of dependant. However, a common-law spouse can file a claim against the estate by filing a dependency claim or an unjust enrichment claim.
If your common-law partner had no will and no descendants, their estate goes to you. If your partner had children, you will get the first $300,000 of the estate and half of what's left. The other half will go to the children. If any of your partner's children are not also your children, you get the first $150,000 and half of what's left, while the other half goes to the children.
If you and your common-law partner have children together, you will need to go to court to apply for guardianship of them, even if they are already living with you. If the biological parents were living together in a marriage-like relationship while the mother was pregnant and after the child was born, or if both parents cared for the child regularly, then both parents are guardians. If one dies, the other will automatically become the guardian of the child.
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