Death Benefits and Laws for Common-Law Spouses

Published on March 20, 2013 by

This is a guest post by Cesia Green, lawyer and partner at Wall-Armstrong & Green

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I have a lot of clients who are living common law with their spouses. Societally, it has become essentially the same as married; you can get a family membership at the gym whether you are married or living common law. Personally, I am in a common-law relationship myself. Legally, however, it is important to understand that there are strict and significant differences between legally married and common-law spouses. There are a whole host of family law issues to be aware of (I won’t go into detail as that isn’t my practice area), most of which involve spousal support and division of family assets, but today I am going to talk about what happens to your estate if you are not legally married to your spouse.

I would also like to note that for the purpose of this blog post, spouse means either same-sex or opposite-sex; in Ontario, since 2005, there has been no difference. The difference lies between legally married or common law.

In Ontario, if you die without a will, your spouse is entitled to what is called a preferential share of your estate, which is currently set at $200,000.00. After that, there is a division between spouse and children if there are children, and if there are no children, the spouse receives the entire estate. The definition of spouse, however, is very clear: legally-married spouse. A common-law spouse is not automatically entitled to any part of the estate. If you want your spouse to inherit and you are not legally married, you must have a will.

Common-law spouses can get support out of the estate. However, you must essentially sue the estate for support, by going through the courts and letting a judge determine what you might be entitled to. It is a much more difficult process.

The Ontario government has been clear on this for decades: If you are living common law, you can opt into the same rights as married spouses, but you must choose to opt in. You only receive the default protection if you are legally married.

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