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Estate planning for common law spouses

On Behalf of | Feb 21, 2022 | Estate Planning

If a couple was living in a common law relationship at the time of one partner’s death, the fate of any property depends upon the existence of a will. If the decedent took the time to do some estate planning and left a valid will, what happens to any property will likely be included in the document. If a will doesn’t exist, then intestacy rules will apply, indicating who inherits the property, and common law partners aren’t considered under these rules. Property inheritance typically follows a line of succession — legally married, spouse, children, grandchildren, parents, and on down the line. 

Owning property jointly

If partners owned property and money jointly, the surviving partner usually inherits it. If partners owned property as tenants in common, the decedent’s share goes to his or her estate and is divided according to a will or Ontario intestacy statutes. If a common law partner is the beneficiary on an insurance policy or on other investments, he or she will also inherit those funds. There are some cases in which a common law partner might make a claim to a partner’s property, and that’s by way of an enrichments claim or a resulting trust claim, which a lawyer would be able to explain. 

The home 

Sadly, if the deceased partner owned the home and his or her common law partner is not on the title, he or she may be asked to vacate the premises. A common law spouse does not have the same right to live in the home after a partner’s death as a married spouse does. A common law spouse may, however, qualify for other claims or benefits, such as the Canada Pension Plan, if both partners were living together for at least one year when the person died. 

It is especially important for most common law couples to dedicate a certain amount of time to estate planning. Some people believe love does not need a legal document. However, there are a myriad of instances where the law doesn’t look at it the same way, so it could prove invaluable to protect each other by having comprehensive estate plans.  


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