In Ontario, if a common law partner dies without a valid will, what is the surviving spouse entitled to? Nothing, actually. Currently one of the only ways for a common law spouse to share in their partner’s estate on an intestacy is by applying for dependant’s relief under Part V of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”). If an application is made, it is then up to the court to decide whether the surviving common law spouse is entitled to dependant support and, if so, how much.
Part II of the SLRA, which applies to intestate succession, makes no provision for common law spouses, although it does permit married spouses to inherit on intestacy. In fact, a married spouse is entitled to receive a preferential share of the deceased’s estate worth $350,000, as long as the death occurred on or after March 1, 2021: see O Reg 54/95.
The current state of the law speaks to the importance of estate planning for common law spouses. It’s a bit troubling to think that if a common law spouse passes away without a will in Ontario, the surviving spouse will inherit nothing. The first class of person in line to inherit the estate of a deceased common law spouse is their children. If there are no children alive at the time of death, then the next class of persons who could inherit are the deceased’s grandchildren. If the deceased passes away without children or grandchildren, the estate could be inherited by their parents, then their siblings, then their nephews and nieces, then their next of kin and, ultimately,the Crown.
In this respect, the law in Ontario is out of step with the law in most other Canadian jurisdictions, where common law spouses are entitled to share in their partners’ intestate estates. For example, the law was updated in British Columbia to include common law spouses throughthe Wills, Estates and Succession Act, SBC 2009, c. 13. Alberta followed suit in 2012, when the Wills and Succession Act, SA 2010, c W-12.2 came into force. More recently, the law in Saskatchewan was updated to extend to common law spouses through the Intestate Succession Act, 2019, SS 2019, c. I-13.2. Common law spouses may also share in intestate estates in Manitoba, Nunavut, the Northwest Territories and the Yukon, although in the Yukon, a surviving common law spouse must apply to share in their spouse’s intestate estate under section 74 of the Estate Administration Act, R.S.Y. 2002, c. 77.
New Brunswick, like Ontario, is one of the few remaining provinces where common law spouses do not share in intestate succession. That could soon change though – the Legislative Services Branch in New Brunswick is currently preparing a proposal for new wills legislation which, if enacted, would apply that province’s intestate succession regime to common law partners the same way that it currently applies to married spouses. The proposed changes for the new legislation are discussed in Issue #47of New Brunswick’s Law Reform Notes. In addition to extending New Brunswick’s intestacy succession regime to common law partners, the Legislative Services Branch is also recommending a host of other changes to modernize New Brunswick’s wills legislation, such as repealing the rule that marriage revokes a will. We can expect to hear more information about the proposed legislation next year.
In the meantime, there is no indication that Ontario’sprovincial government is considering extending Part II of the SLRA to apply to common law spouses, meaning that if you are in a common law relationship and want to ensure that your partner gets to inherit from your estate, an estate plan is essential.
Enjoy the rest of your day,