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 (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
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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?
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.
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?
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.
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
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
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
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.
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
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.
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.
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.
Thanks for your comment.
We responded to your inquiry directly to your email on June 2, 2020. If you wish to discuss further please contact Ioulia at ioulia@hummingbirdlaw.com