What Recourse Is Available To The Surviving Spouse In Ontario If His Or Her Common Law Partner Dies Intestate?

When a common law partner dies intestate (that is, without a will), the surviving spouse has recourse to two claims on the estate of the deceased. The spouse can make a claim based on trust principles or can make a claim for support.

Trust principles apply when a common law spouse has contributed money or effort towards an asset or towards the expenses. For instance, they might have been contributing to the property taxes or mortgage payments or they may have contributed labor or effort to improving the asset If they live on a farm, the common law partner may have helped with the farming. In those sorts of cases, the common law spouse does have a claim that is recognized based on trust principles and there can be a claim for a declaration that the estate is holding the asset pursuant to a constructive trust in favour of the spouse. But in such a case, the onus is on the claimant to prove his or her contribution of money or labor to that asset, and it could take years and thousands and thousands of dollars in legal costs to win that claim.

There is another claim that a common law spouse can make and this is recognized under Part V of the Succession Law Reform Act. A claim can be made by a dependent against the estate for support. This means that a common law spouse, provided the partners have been living together at least three years or have had a relationship of some permanence and there’s a child, can make a claim for support both on their own behalf and on behalf of the child. This could involve litigation if there’s a dispute with whoever else is involved as a beneficiary of the estate or with the administrator of the estate.

Married spouses, when one of the spouses dies, have an opportunity to look at what they received under the will, and if they’re not happy with that, they can also make a claim for equalization under the Family Law Act similar to what a spouse might do on a separation or divorce. The spouse would list his or her net worth and the estate would list its net worth. If the estate is worth more, then the claimant would be entitled to half the difference. So this is a right afforded only to married spouses.

Common law spouses don’t have that right under the Family Law Act. They can’t say, “Well, the estate is worth “x” millions of dollars and I have no assets, so I want an equalization.” They don’t have the right to bring such an application. All they can claim is support or make a claim based on the trust principle that the estate is holding assets in trust for them because of money they’ve given, or contributions or efforts they’ve made towards improving the assets in the estate.

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If you, or someone you care about, is dealing with estate law issues in the Markham, Ontario Region, contact Charles B. Ticker for a consultation.

This article is taken from a November 13, 2008 interview with Charles B. Ticker, Estate Lawyer with Charles B. Ticker Law Office, a Markham, Ontario Wills and Estate Law Firm. This article and website provide general information on legal and related matters and should not be relied upon as legal advice. If you require legal advice, you should consult and retain qualified legal professionals in your area to advise you about your particular situation and the law in your jurisdiction as laws vary from province to province, state to state and country to country.