Some common-law couples assume that because they live together for a long time and share their lives as though they were legally married, the law views their situation in the same light.
In terms of estate planning issues in Ontario, that is not always the case. Even if a couple has lived together for decades as a common law husband and wife, they have different property and legal rights, including the sharing of a matrimonial home or any other property than they would have had they been legally married.
The rules are slightly different for each province but in Ontario, if a common-law spouse dies, the remaining partner is not automatically entitled to inherit any portion of his or her deceased partner’s estate. This part of the reason common-law spouses need to be included in estate plans that include wills. There are things common-law spouses can do to ensure they will be looked after when their partner passes away.
Having a cohabitation agreement drawn up can identify what support a remaining spouse would be entitled to, need or want, including the ownership of matrimonial home. Making sure a common law spouse is named as beneficiary on any life insurance policies or retirement plans is also important. Joint ownership of a home with survivorship rights may also be a solution.
If surviving spouses are unclear of the legalities of their situations or if they are unsatisfied with their deceased partners’ wills and estate planning, they have the option of taking legal action against the estate.
An Ontario lawyer, who practices wills and estates law would be able to lead his or her client in the right direction on common law marriages as they pertain to the inheritance rights of a common law partners. Consulting a lawyer to have the proper documents drawn up prior to any unfortunate events happening may be a wise move.
Source: moneysense.ca, “Don’t assume you have property rights in a common-law marriage“, Ed Olkovich, Accessed on Nov. 3, 2017