A Common Law Spouse Property Rights When A Common Law Partner Dies Without A Will

Common law partners do not have nearly the same rights to estates and properties as married spouses do.

If the surviving common law partner owned the home as a joint tenant with right to survivorship, then he or she would obviously get an interest in the house. But if the surviving common law partner was not on title, he or she would have no automatic rights. If the person who died did not make proper arrangements through a will, the situation could lead to real hardship. You might find minor children inheriting an estate instead of the common law spouse and that can create a real problem. There is often litigation involving common law partners who claim to have contributed money or effort to an asset and, therefore, look to make a claim against that asset or property. But, generally speaking, when it comes to rights to property, common law spouses don’t have the same rights as a married spouse.

If a married spouse dies without a will (in law “intestate”), there is a formula for calculating what portion of the estate would go to the spouse and to any children. Intestacy is covered in Ontario by Part II of the Succession Law Reform Act. In the case of a married spouse dying without a will, the spouse has a preferential share of the estate and that is, according to the current regulations, $200,000. The surviving spouse would then share the residue of the estate with any children. If there’s one child then the spouse would get the first $200,000 of the estate and would share the balance with the child 50/50. If there are two or more children, the spouse would get the first $200,000 and then would get one-third of the residue and the children would get two-thirds of the residue to share between them. If there is no spouse or children, then the statute provides for other family members to inherit in a specific order.

The law referring to common law spouses also applies to same sex spouses who are not married; they also do not have property rights. It’s not clear what would happen now that some same-sex couples actually go through a formal marriage. The Succession Law Reform Act was amended and now defines spouses as two persons who are married to each other. So married same sex spouses would now appear to have the same rights as married spouses of opposite sex.

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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.