A prevalent misconception is that common law spouses have the same rights as married spouses in estate matters. The reality is that they are not treated the same, especially with respect to issues relating to the division of property.
In Ontario, under the Family Law Act, a legally married spouse is entitled to receive an equalization of net family property upon the death of a spouse because the law assumes that both spouses contributed equally to the accumulation of wealth during the marriage and the equal sharing provisions apply. Therefore, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them. If a legally married spouse is unhappy with the provisions made for him or her in the Will of the deceased spouse, the surviving spouse can opt to take an equalization instead. There is no similar property protection for a common law spouse. A common law spouse has no right to elect for equalization of net family property.
Furthermore, if a common law spouse dies without a will, then sections 44-49 of the Succession Law Reform Act (SLRA) apply with respect to the distribution of the estate. These sections of the SLRA deal with intestate succession. When it comes to property rights in cases of intestacies, only married spouses have a right to share in the estate of their spouse if their spouse dies without a will. A common law spouse has no right to receive a preferential share of the deceased’s estate and a common law spouse has no entitlement to share in the residue of the deceased’s estate. This rule applies irrespective of the length of the common law relationship. The SLRA provides an order for the distribution of estates in intestacies – an order which does not include common law spouses.
Interestingly, the Estates Act provides that in an intestacy a common law spouse has priority to administer the estate of the deceased partner if the couple was living in a conjugal relationship outside of marriage immediately before death. One possible outcome that can occur is that a common law partner can be appointed as the estate trustee but not receive anything from the estate.
Common law partners may be able to acquire interests in each other’s property under other legal doctrines, such as unjust enrichment and constructive trust. The likelihood of success for such claims will depend on the circumstances of each case.
To avoid many of the uncertainties that arise with common law relationships, it is best for those in such relationships to plan ahead. Couples in a common law relationship should prepare wills, have an estate plan, and consider entering into a cohabitation agreement that provides whether they have any property sharing rights between them.