In everyday conversation, the word “spouse” is often used without thought. It may refer to a legally married partner or someone in a common-law relationship, and most people do not pause to consider the difference.
In estate planning, however, that distinction can have significant legal consequences. In Ontario, legally married spouses and common-law spouses do not receive the same rights or entitlements when their partner dies.
One Word, Different Legal Meanings
In the estate law context, the distinction between married and common-law spouses is reflected in the definitions of “spouse” found in Ontario’s Succession Law Reform Act and Family Law Act. Those definitions can affect what a surviving partner may claim from the deceased person’s estate.
Married Spouses May Have an Equalization Election
When a legally married person dies leaving a Will, the surviving legally married spouse has the right to elect either to take the entitlement provided under the Will or to receive any equalization entitlement available under section 5 of Ontario’s Family Law Act.
This statutory equalization right and election are available to legally married spouses. A common-law spouse does not have the same equalization rights merely because the parties lived together in a common-law relationship. Depending on the circumstances, a surviving common-law spouse may have other estate, support, contractual, or equitable claims, but those rights are distinct from the statutory equalization regime available to married spouses.
What Happens When There Is No Will?
Under the Succession Law Reforem Act, when one spouse dies without a Will, the surviving married spouse is entitled to the preferential share of the estate.
The surviving married spouse may also be entitled to receive a portion of the remaining
estate.
Common-Law Spouses Do Not Receive the Same Property Entitlements
The result may be substantially different when the deceased and surviving partners were living in a common-law relationship.
When a common-law spouse dies without a Will, the surviving common-law spouse is not entitled to the preferential share or to any of the deceased partner’s estate property. Instead, the surviving common-law spouse’s recourse is limited to bringing a claim against the intestate estate for support under the Family Law Act.
Although common-law spouses have the same priority to apply to administer an estate or to bring claim against the estate as a dependant, they are not granted the same property entitlements that are available to legally married spouses.
Your Relationship Status Can Affect Your Estate Rights
The circumstances of each family can significantly influence the legal entitlements that arise after a spouse’s death. Assuming that married and common-law partners will be treated in the same way may leave a surviving partner without rights or inheritance they expected.
For this reason, obtaining advice from an estate planning lawyer is an important step in understanding your rights and determining how to protect yourself and your partner through appropriate estate planning.
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