When A Common Law Spouse Dies Without a Will

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

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:

  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.

Save the trouble. Contact our Wills & Estates lawyers to get a quote to make a Will.

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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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  1. says: Jane Johnson

    My sister in law passed away without will.. She lived in Saskatchewan with her Mother at the time of passing. She had been living with a man commonlaw for 2 years , but had left and moved to her Mothers for 6 months prior to passing.. her father left her a large amount of money. Is her Mother the beneficiary or the ex commonlaw, who she lived with for 2 years but had been broke up for 6 months and she was with her mom.

    1. says: Ioulia Vinogradova

      Please accept my condolences for your recent loss of your sister. Iin Canada, each province has its own set of laws and regulations that govern the administration of estates, the rights of beneficiaries and dependents. If your sister had assets in Ontario at the time of her death, please contact me directly to set up a call to discuss your inquiry further.

  2. says: Tannis

    I was with my common law partner 30 years. No kids. No will. He recently passed I reached out to his employer for his beneficiary paperwork but they lost it. They said after 7 yrs it must of been destroyed because my partner was on life ins disability for the last 10 years. But how do u get rid of paperwork when he’s stilled employed with the company?!? They didn’t even have a copy forwarded to his insurance company?!? How can this be legal?!? The company said it was all done in house. Now his life insurance payout will go to his estate. How do I become the his beneficiary?!? We have never filed r income taxes together or have joint bank accounts. I really don’t know why. We just never thought of it, sadly. Would it matter that Dr, pharmacists, friends, family that will step forward for me in court?!? I desperately need help. He was the bread winner. I’m disabled and get $1700 monthly. I have paid my rent. And just found out income supports & life insurance company denied cremation. Meaning I have to come up with it. He has 2 older siblings but r not close at all. I’m afraid I will be homeless & completely destitute.
    I’m hang on by a thread. I’ve called a few lawyers going on 2 weeks now, and called them back to still no avail.
    Please I’m desperate. I need help
    Thank u kindly

  3. says: Dee

    My common law spouse passed away, we were not living together due to immigration issues but planned to as soon as it was resolved

  4. says: R. Godfree

    My brother died without a will. He had lived in an alcoholic household with a woman for 27 years. She was the beneficiary of his two pensions which totals approximately $4300.00 per month. This would be in addition to her own income from her job, her OAS, and CPP. However, she wants the house and property. Do the courts side with “greed”?

  5. says: Amanda C

    Hello, my father passed away almost 3 weeks ago. He has dual citizenship in United states and Brazil. He has a “stable union” in Brazil with a Brazilian citizen. Will she be able to recieve my fathers pension and other retirement benefits? Life insurance? How is this recognized in the state of Ohio where he has retired from? What can we do to protect this from her?

    Thank you.

  6. says: Anastasia Beaverhousen

    My dad has a common law that is dependent on him. She spends all her money (EI/CERB) online shopping and doesn’t have savings as a result of her poor money managing (something she’s admitted to doing on purpose so my dad will have to support her. No written proof).

    In the event that my dad passes with/without a will (she can file for dependency). What can be done to protect what my fathers assets?

    1. says: IOULIA VINOGRADOVA

      Thank you for your inquiry. To properly advise you we would need to know more particulars about your father’s assets, his common law’s employment, age, the duration of their relationship. This is because the strength of a common-law spouse’s dependent’s claim varies based on the specific circumstances of each case and depends on many factors such as the length of the relationship, the surviving spouse’s earning capacity, earning history, education, etc. While your father’s common-law spouse has the option to bring a dependent’s claim against your father estate, if your father has not provided for her adequately, that does not automatically mean that her claim against the estate would be successful. If you would like to discuss this further, please contact me directly at ioulia@hummingbirdlaw.com.

  7. says: JA

    My common law spouse passed away earlier this year. We lived together for almost 10 years in his house. I paid majority of household bills. House would currently go to his father as next of kin as there were no children. I am now trustee of the estate without a will. Do I have a claim on the property?

    1. says: IOULIA VINOGRADOVA

      Hello,

      As a common law spouse you may sue the estate for unjust enrichment to the estate for the actual financial contribution you may have made to the property that was only in your deceased spouse’s name. Your financial contributions had to be such so as to benefit his estate to your financial detriment.
      If you would like to schedule a consultation, please feel free to contact me directly at ioulia@hummingbirdlaw.com or call at 905-731-1911 ext 230. You should consider that if you are going to bring a claim against the Estate, you will need to step down from your role as the Estate Trustee, because you technically as the Estate Trustee would be responding on behalf of the Estate to your own claim. If you are formally appointed now, you are eligible to seek compensation from the Estate.

  8. says: Mercia Kruger

    Hello
    My son passed away accidentally was also common law have 1child minor some of his money was frozen by masters he got car and I think thy have joint house what happen to all his property

    1. says: Amy MacAlpine

      Hello, Please accept our condolences on the loss of your son. It is difficult to say what happened to his property without more information. We are happy to set up a consultation with you. We can schedule a one hour telephone or in person meeting, for $375 plus HST to discuss all the details and answer as many questions as possible.
      Please email me at amy@hummingbirdlaw.com should you like to proceed.
      Amy

    2. says: Amy MacAlpine

      Hello, Please accept our condolences on the loss of your son. It is difficult to say what happened to his property without more information. We are happy to set up a consultation with you. We can schedule a one hour telephone or in-person meeting, for $375 plus HST to discuss all the details and answer as many questions as possible.
      Please email me at amy@hummingbirdlaw.com should you like to proceed.
      Amy

      1. says: Lea

        Hi my status is common law my question if my spouse die is his children on his previous wife have the rights to the property that we invest? He is divorce on his wife.

        1. says: Amy MacAlpine

          Hello, If your common law spouse dies without a will his children will be the heirs at law to his estate. His former wife may have some entitlements if he has a legal obligation to provide support.
          We would have to review his Divorce Agreement/Order to accurately say what his situation is. Our recommendation is to have a consultation with an estates lawyer and prepare a Will. If you would like to discuss further, please fill out this form: Hummingbird Lawyers Client Intake

          Thank you.
          Amy

  9. says: Mary Henry

    My daughter passed away. She was living common law with a man who was legally separated but not divorced from his first wife. There was no will and no beneficiary of her insurance. As her Mother do I inherit as there are no children.

    1. says: Amy MacAlpine

      Hello Mary, please accept our condolences.
      If there is no named beneficiary, then the insurance will be made payable to her estate.
      If you are the next of kin, then under the Succession Law Reform Act, you will be the beneficiary.
      Common-law spouses have no automatic property rights.
      If you would like to further discuss please email me directly at amy@hummingbirdlaw.com.

  10. says: Z

    My parents passed years ago leaving the family house and cottage to my siblings and I. My brother passed late 2019, and his common law (on and off for 10 years) believes she has a claim to the family property. Is this true? He passed without a will, and they were both married (just not to each other). How can we protect the family assets? She collected his life insurance, his CPP and his pension and now wants more. Please advise.

  11. says: Anna

    Hello! Do same rules apply for principal residence held in-common by common law spouses? and work pensions? what would be most cost-efficient way to plan for the worst: marriage/wills and beneficiaries for registered accounts/changing the ownership of the principal residence? thank you

    1. says: Amy MacAlpine

      Hello and thank you for your question.
      Please let me know with what rules you are referring to?
      Tenants in common versus joint with survivorship are very different.
      The best course of action is to have a consultation with an estates lawyer who can review all your questions with you and provide you with the best recommendations.
      You can email me at amy@hummingbirdlaw.com if you would like to set something up.
      Amy

  12. says: Elle

    If a common-law spouse is palliative and has no will and may not be deemed to have capacity, could the POA who has fore-knowledge of their wishes draw up a will for her/him? Could it stand up in Court?

  13. says: Babette Tasse

    My Common law fiancé/ spouse died of seven years last may , no will , I need some advice I’ve been bullied since ge died from my in-laws blaming me for his death They removed all the estate money with out no one yet has been appointed yet as the estate trustee , they haven’t giving me the death certificate, and horrible harassment I need advice please , thank you

  14. says: h

    Hi. my common in law has passed but i was not in the will. what happens to my own personal belongings that i bought or had given to me or my kids?

    1. says: Amy MacAlpine

      Hello and thank you for your question.
      Your own personal belongings or your children’s, are yours to keep.
      Only things that were his, are part of the estate.
      While he may not have included you in the Will, it is possible that you may still have a legal claim against his estate.
      You should seek legal advice as soon as possible to ensure that you know what your possible entitlements are.
      Please email me directly if you would like to arrange a consultation.

  15. says: Julie Hayward

    How can we change this? How can we get the gov’t to recognize common-law partners as “legal” spouses without a marriage certificate? In the 21st century, there are probably more common-law couples than married couples. Many people do not believe in marriage, or are not religious, or do not feel they need to pay for a piece of paper to prove their bond or love. It’s a cash grab by the government. My common-law and I have been together for over 16 years now and have 3 children. I have legally taken his last name. We don’t feel the need to get a piece of paper for the government (only) to see use as husband and wife because, to each other, we ARE husband and wife. We take care of each other and if, after so many years, one of us should pass and the government says “No! everything you two built together in your relationship is no longer yours unless you can PROVE it!!” is extremely unfair and unjust to the person who just spent the majority of their life with that person. I think, when a couple of co-habitates for 10 years or more, the government should recognize them as legally “married”. I actually think they should do away with “legal” marriages, but again it’s a cash grab all the way around so I know it will never go anywhere.
    Who can I contact to petition to have this changed?

    1. says: Amy MacAlpine

      Hi Julie, I hear you!

      You need the legislature to change the definition of “Spouse” under the Succession Law Reform Act.
      That would resolve the issue.

      Amy

      1. says: Cindy levesque

        Hi
        My brother pasted away in 2017. I was the beneficiary to his pension. Can his common law spouse take that away from me?they had be living together for5 years. I was but even contacted by his union as the rightful Beneficiary

        1. says: Ioulia Vinogradova

          Hello Cindy,

          Thank you for your inquiry with Hummingbird Lawyers. Where a beneficiary is named on a pension, that beneficiary is entitled to receive the proceeds. That said, I am familiar that certain companies, for example, Coca-Cola, have specific provisions for spouses when it comes down to spouses. To advise you better, I would need to know more details about your specific situation. If you would like to schedule a consultation, please contact me directly at ioulia@hummingbirdlaw.com. Or call the number below.

          Best regards,
          Ioulia