When your Partner Dies Without a Will in Ontario: Married and Common Law Spouses Have Different Property Rights

Yes, if you’re married or in a common law relationship, it makes a difference.

You lived with a partner for 13 years and suddenly your partner dies. If your partner never made a will, what do you do next? You need legal advice about your rights.

In Ontario, your property rights depend on the legal status of your relationship. There is a big difference if you were legally married to each other. I’ll review some property rights here. But I am referring to situations where there is no will, no written cohabitation agreement or marriage contract.

Married or Common Law: What’s the Legal Difference?

You were a couple for 13 years.

But you never married.

Sure, after 13 years everyone treated you like you were married. But legally you were not.

Big difference in law if you don’t have a marriage license.

You may have received tax, health and other benefits as a non-married spouse. But when your partner dies in Ontario, you have no automatic right to share in your spouse’s property.

Want to know more about protecting yourself?

See my MoneySense post on Property rights in a common-law marriage.

Don’t assume you have any Ontario property rights.

Marriage Licenses Make the Difference

You may live in the same house, pay the mortgage and bills together, but what if your name is not on the deed to the house?

Well, if you are married, the house can be your matrimonial home. You likely can claim half of the property.

If you are not married and you have no cohabitation contract or will in your favour, you may have to sue your partner’s estate.

Common Law Spouses End Up in Court

As a common law spouse in Ontario, you have no right to share in your spouse’s property.

Married spouses have property rights by statute, unlike common law spouses. When your married spouse dies without a will in Ontario, you have options.

You can inherit under the intestate rules. This can give you, after expenses, the first $200,000 from the estate. You also receive a share of the balance depending on how many children there are.

Common law spouses have no such luck. They may not recover anything unless they go to court. Better find a good lawyer.

Are you a common law spouse? You may want to read my blog posts on Joint Family Ventures:

New Estate Remedies for Ontario’s Common Law Spouses: Joint Family Ventures – Part 1

New Estate Remedies for Ontario Common Law Spouses: Joint Family Ventures – Part 2

There are strict time limits for legal remedies when your partner dies. Make sure you get legal advice promptly.