Ontario Common Law Spouses Who Are Disinherited Still Have the Right to Fight Back
Ontario’s inheritance laws discriminate against common law spouses. You do not, by law, automatically inherit anything as a married spouse does when you partner dies. You and your partner must plan for your needs and to make a will. I’ll explain how you can fight back if your common law spouse dies without providing for you.
What if your married spouse dies without a will (or intestate)? Don’t worry. Ontario law gives married spouses the first $200,000 of their married spouse’s estate after creditors are paid. If the estate has anything left after that, a married spouse inherits if the deceased spouse had no children.
Caution: Your deceased spouse may have children from a prior relationship. This is a common mistake people make – thinking their common law or married spouse inherit everything regardless if they make a will or not.
Now you know common law spouses have different inheritance rights than married spouses. After 13 years together, you may feel married. But you may have to prove you had a common law relationship to get pension benefits and support.
Married spouses in Ontario also have other inheritance rights. They have rights to a Family Law Election. Read my post:
No Inheritance for You
If you are a common law spouse, you don’t inherit that $200,000. This amount is referred to as a married spouse’s preferential share of the estate. Currently this is $200,000. The government can increase the amount of this share by regulation. It may be contemplating making changes since it has not been amended since the 1990s.
Common Law Remedies
If you are a common law spouse, you do have remedies. I have written about these remedies which require you to apply in court for relief. You may have claims to property based on trust law, unjust enrichment or monetary claims for services. Some of these terms your lawyer will need to explain.
That’s right, you will need to hire an experienced estate lawyer to make your claims. There are pros and cons of seeking legal remedies depending on who also may share on an intestate estate.
The courts have identified new estate remedies which include joint family ventures. I have previously written about this here:
Common Law Spouse Statutory Support Claims
Common law spouses have the right to claim support if they have not been provided for by their spouses. You could receive a life insurance or pension death benefit which may be sufficient for your needs. If not, you may need to negotiate with beneficiaries of your spouse’s estate for additional support.
These claims can be resolved through mediation. However, you may have to commence legal proceedings to become entitled to support under the deadlines and term of Part V of Ontario’s Succession Law Reform Act.
Legal proceedings are expensive. They cause delay and carry risk that you may be unsuccessful and be responsible for legal costs of the estate. The onus is usually on you to establish that you were cohabiting with the deceased. Often, estate beneficiaries are unaware of your relationship with your common law spouse. They may be shocked that their parent had a secret partner who lived in another residence. They can compel you to satisfy a court of your entitlement.
If You Are an Executor
Executors are often confronted by claims from common-law spouses.
Are you an Ontario executor facing such claims?
You will need experienced legal advice to know how courts will handle such claims. Many factors are considered including the size of the overall estate.
I can assist you. Contact my office for a meeting.
Are you a Common Law Spouse?
You may not be aware of your entitlement to relief or support. Contact my office for a meeting.Posted In: Estates, Inheritance On: December 23rd, 2020