In Canada, many of the benefits that are afforded to legally married spouses are also afforded to common law spouses under pieces of legislation such as the Pensions Benefits Act, the Canada Pension Plan, the Insurance Act and the Income Tax Act.
However, in Ontario, when a common law spouse dies, the surviving spouse does not automatically have a right to an inheritance. It may be possible for the surviving common law spouse to bring a legal claim for dependent’s benefits, but that kind of court action can be expensive and time-consuming — and the cost may actually outweigh the benefits.
This outcome can be avoided with the proper planning, particularly with regard to wills and trusts. You and your common law spouse can draft corresponding wills that ensure that each of you is provided for upon the death of the other. You may also explore the option of creating a trust and naming your common law spouse as a beneficiary.
In Ontario, the act of marriage effectively revokes an existing will unless it specifically contemplates the marriage, or unless the surviving spouse takes legal action within one year of the death. This important for common law spouses to understand when drafting their own wills. If you think legal marriage is a possibility in the future, then it may be a good idea to contemplate the possibility of marriage in your will in order to avoid its revocation when you marry.
If you have questions about any of these matters, then speak with an experienced estate planning lawyer. At the Hagel Lawfirm, we help legally married and common law spouses create customized estate planning solutions.