Estate

Estate Issues for Common Law Spouses

“What if my common law partner passes away without a will, without providing me with support, or with a will that treats me unfairly?”

Dependants Relief

If you rely on your partner for financial support, when your partner passes away, you may be entitled to support from your partner, regardless of whether you were married or not.
To obtain this support, you must show that:

1. that there was cohabitation;

2. that your partner was providing support or was under a legal obligation to provide support.

3. your partner has not made adequate provision for your support;

You must bring this claim within 6 months from the grant of probate.

Succession rights on intestacy

If you are married, and your partner passes away without a will, you automatically receive a share of your partner’s estate.
If you were in a common law relationship, you get nothing, although you can still bring a claim against your partner’s estate for “unjust enrichment.”

In Manitoba, since 2004 this no longer applies for unmarried couples who have lived together for a certain length of time. Find out more about the Manitoba regime.

Equalization payment on death

If you are married, and your partner does not give you a fair share of his or her assets in their will, then you have a remedy against this, namely asking for an equalization payment from your partner’s estate. If you were in a common law relationship in Ontario, you have no such right, and must rely on the nebulous legal concept known as “unjust enrichment.”

Possession of matrimonial home on death

If you are married, and your partner passes away, you have the right to remain in the matrimonial home, possibly for a long time.
If you are in a common law relationship in Ontario, you don’t have this right.
However, you can claim this as an incident of spousal support.
While there is no obligation of a court to grant you this, courts have generally been willing to do this.

Evidentiary Concerns

If you separate, and make a claim for unjust enrichment, your statements alone are enough, if the court finds you to be a credible witness.
However, if you are making a claim for unjust enrichment against your common law partner’s estate in Ontario, you will need a corroborating witness.
This can make it much more difficult to succeed at such a claim.

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