When A Common Law Spouse Dies Without a Will

Death of Spouse

When A Common Law Spouse Dies Without a Will- Death of Spouse

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 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:

  1. by using a constructive trust
  2. 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.

Amy MacAlpine

Amy MacAlpine is a partner at Hummingbird Lawyers. She supports clients in the areas of Wills and Estates, Litigation, and Family Law.

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