Common-law Spouses – New Dangers Discovered

Canada’s Supreme Court has issued a wake-up call for common-law spouses.

The law has changed based on decisions released February 2011.

If you are a common-law spouse, you may not realize it but you have no legislative rights to inherit property in Ontario.

In Kerr v. Baranow, the Supreme Court of Canada clarified how claims can be made by common-law spouses.

In the next few weeks, I will be writing about how this is a game changer for many readers.

The case affects you if you are: 

• an executor dealing with claims from a common-law spouse
• a common-law spouse left without a proper share of an estate
• making a claim against an estate for support
• doing your will and estate planning involving a common-law spouse

I will point out the common dangers you can avoid when you are making a will. You may need to revise your own estate planning to prevent costly disasters. 

Let’s start with some basics.

When Is a Spouse Not a Spouse?

Married spouses have legislated rights in Ontario. The laws protect you if you have a marriage license. You have rights to share property and get support.

However, if you are a common-law spouse, in most jurisdictions, including Ontario, you do not have the same protection by legislation. The outcome is that if you wish to share property or get support, you must enforce your rights. This usually means going through the costly court system.

Common-law spouses, therefore, must ensure they are protected. Your name needs to be on the title to assets like a house, business or bank account.

What if your partner dies and leaves no will? Or has a will that gives the estate to relatives leaving you without support?

You must find the right legal advisor to sue the estate. The Kerr case lays out new ground rules.