Do Common Law Spouses Have The Same Rights As Married Spouses If One Partner Dies Without A Will?

No, a common law spouse does not have the same rights if their partner dies without a will.

The married wife or husband has an automatic right to receive the first $200,000 of the assets of the deceased, plus a percentage in proportion to the number of children but this is not the case for the unmarried spouse.

If someone dies without leaving a will and they have no husband or wife, then the assets automatically go to their children. If there are no children, then the assets go to the next of kin, such as parents and any siblings. The only way for a common law spouse to get a share from the estate would be by proving some financial dependency on the deceased spouse or proving that they should be granted an interest in it by reasons of their contributions to acquisition, preservation or maintenance of the asset (this is called a constructive trust claim). In that case, he or she might be able to get something from the estate at the discretion of the judge. The judge would have to order it so it certainly is not automatic and is actually quite difficult to obtain. The rights in such a situation are significantly different between common law spouses and married spouses.

Some say that they and their common law partner have decided just to name each other as beneficiary of their wills. The problem with this is that either party can always change their will at any time, without the other person’s consent or knowledge. So agreeing to name your spouse in a will does not really prevent them from changing it in the future. The cohabitation agreement probably would be the best way to stipulate that you have a right to a certain claim on the estate whether it is in their will or not. This would protect you upon separation and death.

The other thing I would say to common law spouses is that if you do not have a cohabitation agreement, at least keep track of receipts because the division of property is based on ownership. If you have receipts to prove that you purchased the car or the piece of art or whatever, then you have a better claim to be able to take that asset upon separation or the death of your partner.


If you, or someone you care about, is dealing with family law issues in the Barrie, Ontario Region, contact Galbraith Family Law for a consultation.


This article is taken from an interview with Brian Galbraith, Family Lawyer with Galbraith Family Law, a Barrie Ontario Family Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.