Common Law Spouses Intestate

My common law spouse doesn’t have a Will, what am I entitled to?

In many ways, being common law spouses is very similar to being legally married spouses. However, one of the significant differences between the two surfaces when a spouse dies without a valid will.

In Ontario, a person who dies without a Will is referred to as “intestate” and the distribution of their estate falls under the intestate rules under Part II of the Succession Law Reform Act, 1990. As detailed in my previous post regarding intestate succession, under this Part, a surviving spouse is the first in line when it comes to the distribution of the estate of their deceased spouse. However, the definition of a “spouse” under Part II of the Succession Law Reform Act specifically refers to legally married spouses. As such, a common law spouse is not entitled to the relief granted under this Part of the legislation.

Additionally, a legally married spouse is entitled, under the Family Law Act, to elect to receive an equalization of the net family property (this is the value of all the property that a spouse owns at the time of death, after deducting any debts and liabilities). Again, this election is only available to legally married spouses.

So, where does this leave a common law spouse when his or her spouse has died intestate?

A common law spouse has the right, under Part V of the Succession Law Reform Act, to bring a claim for dependant support. This Part of the legislation specifically includes common law spouses since it defines a spouse as: two persons who are not married to each other and have cohabited either continuously for a period of not less than three years, or have been in a relationship of some permanence, if they are the natural or adoptive parents of a child. (Please note- this claim is also available for spouses whose spouse died with a will but did not leave adequate support for the surviving spouse)

Although this relief is available, bringing a claim for dependant support can be an expensive and arduous process- given that it will require an application to the Superior Court of Justice.  In the application, the spouse will have to provide evidence to prove that he or she fits into the definition of a spouse under Part V of the legislation. If he or she does fit within this definition, the amount of support is also at issue. When determining a dependant’s required amount of support, the court reviews many factors including, but not limited to, the dependant’s current assets, the dependant’s ability to support his or herself, the dependant’s age and physical and mental health, among others. Additionally, an application by a spouse also allows the court to review the relationship between the dependant and his or her deceased spouse to determine whether or not support should be provided.

This process can be made more complex if there are other beneficiaries who feel that they have a better claim to the estate, or that the common law spouse’s claim is invalid or exaggerated.

Generally, this remedy is only available up to 6 months after date of the grant of letters probate of the will or of letters of administration. If this is the common law spouse’s only alternative, it is recommended that he or she contact a lawyer well before this time limit is up.

The best method to ensure that your spouse is properly supported for upon your death is to have a will drafted. This is especially important for common law spouses as they are not entitled to the same rights and privileges as a legally married spouse. To obtain more information on this topic or to discuss your current situation, please feel free to contact one of our experienced wills and estate lawyers.

Authors: Rosa Carlino