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 receive anything from your estate (your property and possessions).
The Succession Law Reform Act, R.S.O. 1990, Chapter S.26 does not recognize a common-law spouse as a spouse. The definition says that “spouse” means either of two persons who, are married to each other, or have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act.
If a person dies without a will and there are no children, 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 (at present $200,000) plus a portion of anything above that amount.
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.
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 and, as such, 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 Lawyers has been drafting wills for 40 years.