While the legal definition of a spouse continues to evolve, particularly in light of modern relationships, the law in Ontario still draws a clear distinction between married and common law spouses, especially when it comes to estate rights. Although common law spouses are not entitled to an automatic share of a deceased partner’s estate, there are several legal remedies that may be available to them.
Becoming an Estate Trustee
When a person dies without a Will (intestate), the Succession Law Reform Act (SLRA) governs how their estate is distributed. The intestate succession provisions (sections 44 to 49) rely on the narrow definition of “spouse” found in section 1 of the Act, which excludes common law partners. However, section 29 of the Estates Act, when read together with the intestacy provisions of the SLRA, creates an important nuance.
A common law spouse has informal priority over other relatives to be appointed as Estate Trustee, but they do not have a statutory entitlement to any share of the estate. In other words, they may be able to administer the estate, but not benefit from it, unless further legal action is taken.
Dependants’ Support Claim
Section 57 of the SLRA provides broader protections for individuals deemed to be dependants, which can include common law spouses. If the deceased did not make adequate provisions for the common law partner in a Will, or there is no Will at all—the surviving partner may apply to the court for support.
The court will examine several factors, including:
- The length and nature of the relationship
- The financial dependence of the claimant
- The contributions made by the claimant to the deceased’s well-being or assets
If the court is satisfied that the surviving partner was a dependant who was not adequately provided for, it may order a portion of the estate to be paid to them.
Note: A claim must be made within six months of the Certificate of Appointment of Estate Trustee being issued, although extensions may be granted in exceptional circumstances.
Unjust Enrichment and Constructive Trust
If the common law spouse contributed to the purchase, improvement, or maintenance of property, such as a home or business, without being on title, they may be entitled to relief under the equitable doctrine of unjust enrichment.
To succeed, the claimant must prove:
- The enrichment of the estate,
- The corresponding deprivation of the common law spouse, and
- The absence of a legal justification for this enrichment.
A successful claim often results in a constructive trust, which gives the claimant an equitable interest in the property they helped to build or maintain. This remedy can be particularly powerful where the estate includes valuable real estate or business assets.
Joint Assets and Designated Beneficiaries
Not all assets form part of the estate. Certain assets can pass outside the estate, which may benefit a common law spouse:
- Jointly held property (e.g., a joint bank account or home) may pass by right of survivorship
- Life insurance policies and pension plans with designated beneficiaries will go directly to the named individual
However, these arrangements are not always airtight. In disputes, courts may assess the intention behind the joint ownership—was it a true joint interest or a convenience? Who made the contributions? Was it meant as a gift?
Challenging the Validity of a Will
If a common law spouse is excluded from a Will, they may still challenge it on legal grounds such as:
- Lack of testamentary capacity
- Undue influence by another party
- Fraud or forgery
These cases are difficult, require strong evidence, and often result in lengthy litigation. But a successful challenge could see the Will set aside, leading to the application of a previous Will or intestacy rules.
Comments
While societal views have shifted to recognize common law relationships, Ontario estate law has not kept pace. The legal remedies available to a surviving common law spouse are nuanced, fact-specific, and often require court intervention. For this reason, advance planning is critical. If you are in a common law relationship:
- Draft a Will
- Consider a cohabitation agreement
- Use beneficiary designations
- Discuss and align mutual expectations with your partner
Being proactive can help avoid costly and emotionally draining legal battles during an already difficult time.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com