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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Related Article
- Wills – Everything You Need To Know
- Inheritance Rights
- Inheritance
- Types of Trusts
- Protect Your Common Law Spouse
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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.
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.
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
Thank you for your comment, Tannis.
Please get in touch with our Wills and Estates lawyers to help you further with your inquiry.
My common law spouse passed away, we were not living together due to immigration issues but planned to as soon as it was resolved
Thanks for your comment, Dee.
If you need legal assistance please don’t hesitate to reach out to us.
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”?
Hello, thanks for your message and sorry for your lose.
To get an answer, please reach out to our Wills and Estates lawyers.
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.
I am sorry, Amanda, we can only consult on Canadian and Ontario Law.