Avoid common-law surprises when planning your estate

Defining your romantic relationship is not just important for the people involved, but for your will too. 

A recent decision by Ontario’s Court of Appeal appeared to expand the definition of a common law spouse to capture relationships that may surprise some people, and certainly shocked the man at the centre of the case. 

Although the decision involved a discussion about a family law issue, it has implications in estates because of the possibility that the common-law partner of a deceased person could claim dependant’s relief from the estate.  

The couple in the case had a 14-year relationship, but never married and maintained separate residences throughout, staying together only intermittently.  

When they broke up, the woman sought spousal support from the man, but he resisted, claiming they had never “cohabited,” as required for a relationship to be considered common  law.  

Still, the court concluded that they were common-law spouses, based on the level of commitment they had shown one another, her financial dependence on him, and the way they appeared to friends and family. When it came to living together, the court found that their summers together at his cottage, winter vacations in Florida and her frequent stays at his home early in the relationship were enough to qualify as cohabitation.  

Common-law spouses can often be left in a tricky position following the death of their partner – especially if they died without a will – since estates law offers no automatic entitlements to them. That’s a fact that comes as a surprise to many.  

Instead, they must rely on Ontario’s Succession Law Reform Act, which allows dependants of the deceased to make a claim against the estate if they are inadequately provided for in the will. The SLRA uses the same definition for “spouse” as the province’s Family Law Act, which deals with spousal support. 

Depending on the case, a first or second spouse could qualify as a dependant, as well as children from different relationships, or even a new partner’s children from a previous relationship.  

Separation agreements or domestic contracts signed by the testator will often offer clarity about who they have a duty to account for in their will, but not all relationships are clear-cut, especially if they ended bitterly. 

Whatever your individual circumstances, it’s important to find an experienced professional who can ask the right questions about your spousal situation, and ensure that everyone who needs  to be is accounted for. 

Disclaimer: The content on this web site is provided for general information purposes only and  does not constitute legal or other professional advice or an opinion of any kind. Users of this  website are advised to seek specific legal advice by contacting members of Laredo Law (or  their own legal counsel) regarding any specific legal issues.

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