Common-law spouses are not treated the same as married spouses under the law and do not automatically have the same property rights. In Ontario, if a common-law spouse dies intestate (dying 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.
Dependency Claim
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.
The Succession Law Reform Act (Ontario) broadly defines “spouse” and includes those couples who cohabited for at least three years or couples who are in a relationship with some permanence and have a child together. Section 57 of the SLRA includes a spouse in the definition of “dependant”. Section 62(1) of the SLRA lists many factors that the court should consider in determining the amount and duration of support, including the moral obligations of the deceased. A calculation of dependency must be supported with an Affidavit and documentation by the surviving spouse.
While this may be a successful way for your surviving common-law spouse to obtain adequate support, it is a long and costly process both financially and emotionally. Also, be aware that this type of Application must be filed within six months of the Certificate of Appointment of an Estate Trustee / executor being granted.
Unjust Enrichment Claim
Unjust enrichment is an equitable principle that one person should not receive a financial gain at the other’s expense. Examples are 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. Meaning, there is no contract or legal obligation for that spouse to provide a gain to the spouse that died.
This unjust enrichment claim can be remedied by the court in two ways:
- by using a constructive trust
- by a quantum meruit award
A constructive trust awards property, equal to the surviving spouse’s contribution. Quantum meruit is a monetary award based on the promise of a future award from the spouse who died. Courts generally prefer this relief over a constructive trust if it is available. Although the Supreme Court of Canada case law supports these awards for unjust enrichment, it is a long and costly road to travel. It should also be noted that the Court of Appeal of Ontario recently ruled that claims for unjust enrichment for real property falls under the 10 year limitations period s. 4 of the Real Property Limitations Act.
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- Protect Your Common Law Spouse
Hello. My common law partner passed away. We have 1 child. Our house is both under our name. Does my mother in law has the right to our house
Thank you for your inquiry. Our condolences. If your common law spouse died in Ontario and had property in Ontario, and if your common-law spouse died without a will and has a child, then his child is the sole beneficiary of his estate. The Ontario Succession Law Reform Act governs who the beneficiary is when a person died without a will. You may have some claims against the estate, but as a common law spouse don’t have property rights to your spouse’s property. Depending on how you were holding title together, as tenants in common or as joint tenants, you may have the right to the entire house. In order to advise you better we would need to get specific details with respect to your situation. If you wish to schedule a consultation, please contact Katherine at ext. 252.
A friend of mine. His common-law spouse passed away without a will. The home is in his name. They each had their own vehicle. Just wondering if the stuff inside the house and they got together, does he have to give in up to her siblings.
Thanks for your message Diann. It would be best to get in touch with our Wills and Estates department.
Hi there. I am in a official common law relationship with my partner. We have sign documents which clearly stating what will be given to me when we split up. We are living in Vancouver. My partner is not divorced though. If he would die- would I automatically get whatever was in the common law agreement although it’s not & im not in the will ?? Or without will I won’t get anything at all? Thx a lot
Hi, Thank you for your inquiry. Unfortunately, we are not able to advise you about the operation of law in BC. We practice in Ontario. Generally, a cohabitation contract may include provisions for the division of property on death, or it may include a provision that each party is free to direct that their estate be distributed in accordance with a will. As such, I recommend that you speak to a qualified Estates Lawyer in BC to explore the benefits of having a Will prepared. If you have assets in Ontario, we would be happy to discuss with you preparing an Ontario Will.
Thank you, Ioulia Vinogradova
My common law wife passed away suddenly. The house we were in & I’m still currently living in belonged to her father who also passed away suddenly this past July. My spouse believed that our house was to be left to her but apparently not. After a reading of his will we found out that our house was to be sold, probably by this coming summer. So he also had 2 other properties which are to be sold also. As well as a sum of money in his bank account. From what I have learned after all the mortgages , legal fees & taxes & anything else have been looked after any money left is to be evenly divided between my spouse and her 3 brothers . So since my spouse passed away her son is saying that he will be the one who is entitled to her portion . Am I entitled to anything? I would think that I would be given a fair amount since we lived together and did all the repairs & upgrades to our house together for 25 years.
Brian, thanks for your message.
To get the best answer possible, it would be best to reach out to our Wills and Estates lawyers.
by phone: 905.731.1911
or email: info@hummingbirdlaw.com
Our family friend left his common law spouse after she had become terminally ill. They had a separation agreement but did not divorce and the common law spouse has now passed away. The common law spouse lived with their biological adult children who cared for her until her death and arranged her cremation. The family friend of ours pays the mortgage and bills for the family home but bc he became romantically involved with another woman, the adult children refused to let him get into communication with their dying mother (even to say goodbye or attend the funeral) and would not let him into their family home that he currently pays for. He is struggling to make ends meet bc he is now paying the mortgage and rent on an apartment he is staying at as he is not allowed in their home. She died intestate, is he able to sell the house or do the children have some claim?
Thank you for your inquiry. A Separation Agreement is a legally binding document that survives death. Often common law or legally married spouses give up their entitlement to claims against the estates of the other spouse. Similarly a Separation Agreement usually deals with division of property, and child/spousal support. So it is important to review the Separation Agreement to consider what rights if any your friend may have. To provide a more concrete opinion, we will need to have more information and review the Separation Agreement.