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Ontario wills: When one partner dies in a common law partnership

Many common-law partners believe the laws are the same for them as they are for traditionally married couples. That is not always so in most provinces, Ontario included. So, when common-law partners are having wills drafted, they should make specific mention of their common law spouses in the documents.

Those in a common law relationship who leave their assets to their common-law spouse in their wills can be assured their wishes will be carried out if the will was properly drafted and witnessed. If a common-law partner dies without a will, or intestate, the person's assets will go to his or her children. If he or she didn't have kids, then assets would go to family members. 

If the couple owned joint property, that property usually passes to the surviving partner -- that is if they were joint tenants. If they were tenants in common, the deceased partner's share would go to his or her estate.  Funds in any joint bank accounts usually go to the surviving partner. Any life insurance funds would go to a surviving common law partner if he or she is listed as the beneficiary.

Those whose common law partners died without leaving wills would do well to talk to a lawyer experienced in wills and estates law in Ontario. A lawyer may be able to help file an unjust enrichment claim or a resulting trust claim against their deceased partner's estate. A lawyer can advise his or her client whether there is just cause for such a claim and would be able to assist in the court process.


Source: stepstojustice.ca, "We're not married. What happens to my partner's property if they die?", Accessed on Nov. 21, 2017

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