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Common-law Spouse Claim – Estate Litigation 9/9

Imagine this: Daniel and Michael have been in a committed relationship for 12 years, living together, sharing expenses, and supporting each other emotionally and financially. When Michael suddenly passes away without a will, Daniel assumes he will inherit at least a portion of Michael’s estate. However, under Ontario law, common-law spouses do not have the same inheritance rights as legally married spouses. Daniel is shocked to learn that he has no automatic entitlement to Michael’s estate, everything will pass to Michael’s next of kin.

Similarly, consider Sarah, who lived with her partner Robert for over 15 years and even helped him build a successful business. When Robert dies, Sarah discovers that his will leaves everything to his children from a previous marriage. Without a legal claim, Sarah is left without financial support.

These situations are far more common than most people realize. In Ontario, common-law spouses and same-sex partners who are not legally married face unique challenges when it comes to estate claims. This blog explores the legal landscape, the rights available to common-law partners, and the potential legal remedies, including dependant’s support claims, unjust enrichment claims, and constructive trusts.

Unlike legally married spouses, common-law spouses in Ontario do not automatically inherit from their partner’s estate if their partner dies without a will (intestate). Here’s why:

  1. No Automatic Inheritance Rights (SLRA ss.43.1–46)
    • Under the Succession Law Reform Act (SLRA), only legally married spouses have the right to inherit under intestacy laws.
    • If a common-law spouse dies without a will, their estate passes to their biological or legally adopted children, parents, or siblings, but not their partner.
    • Even if they cohabited for decades, a common-law partner has no direct entitlement under Ontario’s intestacy rules.
  2. No Equalization Claim Under the Family Law Act (FLA s.6)
    • Legally married spouses can make an equalization claim under the Family Law Act (FLA) to receive half of the net family property (NFP).
    • However, common-law spouses do not have this right. This means that even if they contributed financially or helped build wealth together, they cannot claim a share of the deceased’s assets under the FLA.
  3. Some Rights as Estate Trustee (Estates Act s.29)
    • A common-law partner can apply to become the estate trustee if their partner dies intestate.
    • However, this gives them administrative control only, meaning not ownership of any estate assets.

Key Takeaway: Without a will, a common-law spouse has no automatic inheritance and no right to claim equalization under the FLA. This is why estate planning is critical for unmarried couples.

Despite the challenges indicated above, there are legal avenues that common-law spouses can pursue to claim financial support or assets from the estate, these avenues are mainly under the “dependant’s support claim” that has been covered in previous blogs.

A common-law spouse can apply for financial support from the estate under SLRA if they were financially dependent on the deceased at the time of death.

  1. Who qualifies?
    • The couple must have cohabited for at least 3 years, or
    • They must have been in a relationship of permanence and had a child together.
  2. Time Limit:
    • The claim must be filed within six months from the date the estate trustee is appointed (SLRA s.61(1)).
  3. Factors the Court Considers (SLRA s.62):
    • The dependent’s financial needs and ability to support themselves.
    • The deceased’s financial obligations before death.
    • The size of the estate and available resources.
  4. Possible Outcomes:
    • The court may order lump sum payments, ongoing support, or property transfers.
    • The court can also claw back assets that were transferred before death to ensure the dependent receives adequate support (SLRA s.72).

If a common-law spouse contributed significantly to the deceased’s wealth, such as by supporting their career, maintaining a shared home, or building a family business, they may claim a constructive trust or damages based on unjust enrichment.

Unjust Enrichment

Leading Case: Kerr v. Baranow SCC [2011]

To prove unjust enrichment, the surviving partner must show:

  1. The deceased was enriched.
  2. The claimant suffered a corresponding deprivation.
  3. There was no legal reason (such as a contract) justifying the enrichment.

Example:

  • Emily helped her partner, Tom, renovate his home, paid household bills, and worked in his business without pay. After Tom’s death, Emily can argue that Tom’s estate was unjustly enriched by her contributions and seek compensation.

Constructive Trust

If a common-law spouse can prove unjust enrichment, the court may recognize their claim by imposing a constructive trust over part of the estate. This means that certain assets will be deemed to rightfully belong to the surviving partner, even if they were not legally owned by them.

Given these legal limitations, common-law spouses should take proactive steps to protect their financial interests:

  1. Create a Will
    • The easiest way to ensure a common-law spouse inherits is by making a legally valid will.
    • Without a will, Ontario’s intestacy laws will completely exclude them.
  2. Consider a Cohabitation Agreement
    • A legal contract specifying how assets will be divided if one partner dies.
    • It can establish financial obligations and avoid later disputes.
  3. Joint Ownership & Beneficiary Designations
    • Holding assets jointly (e.g., joint tenancy in real estate, joint bank accounts) ensures automatic transfer upon death.
    • Designating a common-law partner as the beneficiary of RRSPs, pensions, and life insurance allows them to receive these assets outside of the estate.
  4. Document Financial Contributions
    • Keeping records of financial contributions (e.g., home renovations, paying bills) strengthens a claim for unjust enrichment or constructive trust.

Common-law spouses in Ontario face significant legal hurdles when claiming inheritance or financial support from an estate. Unlike married spouses, they have no automatic inheritance rights and no claim to equalization under the Family Law Act. However, they may still pursue claims for dependant’s support or unjust enrichment.

If you are a common-law spouse concerned about estate rights, or if you are managing an estate involving such claims, seeking legal advice early is crucial. Proper estate planning can prevent disputes and ensure financial security for your loved ones.


Disclaimer: This blog is for informational purposes only and does not constitute legal advice. If you are involved in an estate dispute or planning your estate, consult a qualified lawyer.