Wills & Common-Law Marriage in Ottawa
A Common-Law Spouse Needs a Will. Here Is Why.
If you have been living with a common-law spouse you should both have wills, specifying the disposition of your estate.
If you don’t, you might be surprised to know that if you die without a will (intestate), your common-law spouse will not inherit under the intestacy rules (your property and possessions pass to your married spouse, children or other relatives).
The Succession Law Reform Act, R.S.O. 1990, Chapter S.26 does not recognize a common-law spouse as a spouse for intestacy. Section 1(1) gives “spouse” (outside Part V) the meaning in section 1 of the Family Law Act: either of two persons who are married to each other, or who have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on that clause to assert any right.
If a person dies without a will and leaves no surviving children or other issue (such as grandchildren), his or her spouse is entitled to the property absolutely.
If a person dies without a will, but with children, the spouse is entitled to a preferential share of the property (currently $350,000 for deaths on or after March 1, 2021) plus a portion of anything above that amount: one-half of the remainder if there is one child, or one-third if there are two or more. The children share the rest. The preferential share is measured on the estate's net value, after debts, funeral and administration expenses.
But the common-law spouse is not a spouse within the meaning of the Succession Law Reform Act, and therefore receives nothing in an intestacy.
A common-law partner has no share in an intestacy, but can still claim support from the estate. Under Part V of the Succession Law Reform Act (ss. 57-63), a partner who lived with the deceased in a conjugal relationship for at least three years, or who is the other parent of the deceased's child in a relationship of some permanence, is a "spouse" for that Part. They are a "dependant" if the deceased was supporting them, or was legally obliged to, immediately before death (s. 57(1)). The court can order support whether or not there was a will (s. 58(1)). The deadline is six months from the grant of probate or administration (s. 61(1)). Read our guide to dependant's support claims, then Book a consultation with Francis Mehr LLP.
Get a Separation Agreement
Yet another strange and undesirable situation might occur. If you are separated from your legally married spouse and planning to be divorced, your separated spouse is still considered a spouse by the Succession Law Reform Act until the Act treats the two of you as separated. Since January 1, 2022, a spouse is cut out of the intestacy entitlements only if, before your death, you had lived separate and apart for three years immediately before death, signed a valid separation agreement under Part IV of the Family Law Act, or obtained a court order or family arbitration award settling your affairs, and you were living separate and apart when you died. Until then, your separated spouse would receive the preferential share (and possibly another portion as well, depending on the size of the estate and the number of children of the marriage). This anomalous situation can be avoided by a properly drafted separation agreement.
Another unfortunate situation might occur in a situation in which a second wife might be obliged to sell the matrimonial home to pay the shares that are due to the children of the first wife.
Tidy up Your Legal Affairs
So if you are separated from someone you’ve grown to hate and are living with the love of your life, MAKE A WILL to reflect your wishes and provide for your loved ones. Otherwise a very undesirable and regrettable situation may occur on your passing.
Francis Mehr LLP has been working with wills and estates for over 50 years, since J. Paul Francis founded the firm in 1974.
