Spouse Defined
The concept of a “spouse” has expanded beyond the traditional marriage. More couples are cohabiting in marriage-like relationships without saying “I do” by going through an actual ceremony. What happens when one partner dies without a Will? What happens when a surviving partner is left out of the Will entirely? For common-law spouses, claiming a share of the deceased’s estate is not always straightforward, but it is possible.
Common-Law Spouse
In Ontario, a common-law spouse, also known as a conjugal partner, refers to two people in a marriage-like relationship without being legally married, who either:
(1) have lived together for at least three years; or
(2) they have a child together and have been living together in a relationship of some permanence (generally one year).
Traditionally, under the Family Law Act there were two definitions of “spouse”. The first was a property spouse, that meant legally married and the second was a ”support spouse”. That was the category mentioned above. As matters evolved the support spouse was often referred to as a “common law spouse”.
No Automatic Right to Inheritance
The Succession Law Reform Act1 (“SLRA”) gives married spouses significant rights when their partner passes, including a preferential share of the estate if there is no Will. However, common-law spouses are excluded from these automatic inheritance rights.
To date, s.1 of the SLRA has not amended the definition of “spouse” as it relates to entitlement on intestacy (when someone dies without a Will).
Under the existing definition of intestacy, a common-law spouse does not have any statutory entitlement with respect to property. A common-law spouse is not entitled to a share of the estate of their deceased partner if their partner dies intestate. This is surprising, particularly in long-term relationships where one partner was a “dependant” or contributed equally or substantially to joint assets.
Brian Madigan LL.B., Broker
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