Written by Kelsey Buchmayer, associate with the Ottawa office of Gowling WLG (Canada) LLP

There is often an assumption that being in a common law relationship is no different than being married – marriage is just a formality, right? And in many aspects of life, perhaps this is true, but at death, this is not the case. The tradition of marriage still affords statutorily protected benefits in Ontario when it comes to estates matters that common law partners just don’t have.

This blog post offers a high-level comparison of different estates aspects as between married spouses and common law partners. Of note, a matrimonial/cohabitation agreement can modify many of these rights as between both married spouses and common law partners.

Election

Under the Family Law Act, a surviving spouse can elect between A) receiving their entitlement under the Will or an intestate succession of the deceased spouse (s 6) or B) receiving an equalization payment, being the surviving spouse’s entitlement as if the couple had divorced (s 5). This is because the Family Law Act provides that married spouses must share the increase in value of their property from the date of marriage to the date the marriage comes to an end, which occurs upon the death of one spouse.

Such choice does not exist for common law partners regardless of how long they have been together or cohabitated – there is no statutory requirement for one partner to share the increase in value of their property over the course of their relationship with the other. As such, they are left with only the entitlement provided for them in the Will of the deceased, if any, subject to any equitable claims at common law.

Preferential Share & Intestacy

Under the Succession Law Reform Act (s 45), where there is an intestacy (dying without a will), a surviving spouse has a right to a preferential share of the estate, which is $200,000 for the estates of persons who have died before March 1, 2021 and $350,000 for the estates of persons who have died on or after March 1, 2021 (Ontario Regulation 54/95 General).

Conversely, common law partners have no right to such preferential share under an intestacy as they have no rights whatsoever under the intestacy of their common law partner.

Support of Dependants

Both married spouses and common law partners who fit the s 29 Family Law Act definition of “spouse” are entitled to bring claims of support as dependents under Part V of the Succession Law Reform Act. An order for support can be made where the deceased, testate or intestate, did not make adequate provision for the proper support of their dependents, with such support to come from the estate of the deceased.

Right to be Appointed as Administrator

Under the Estates Act, both married spouses and common law partners (as defined as “person with whom the deceased was living in a conjugal relationship outside marriage immediately before death”, s 29(1)) have the highest right to seek administration under an intestacy or where the executor named in the Will is unable or unwilling to prove the Will.

Registered Plans Spousal Rollover

Though not specific to Ontario as it is federally legislated, it is worth mentioning that the Income Tax Act treats married spouses and common law partners (as therein defined) equally when it comes to the eligibility for a spousal rollover of registered plans (e.g. RRSP/RRIF). As such, when the first spouse/partner dies, the survivor is entitled to receive the transfer of the proceeds of the deceased spouse/partner’s registered plans on a tax-deferred basis. Such survivor is also eligible to become the new annuitant under a registered plan.

Ontario vs Other Jurisdictions

In terms of statutory equality as between married spouses and common law partners (however each province defines the latter), Ontario finds itself somewhere in the middle when comparing the above points to other provinces across Canada.

Generally, common law partners have greater rights in terms of estates matters the further west in Canada you are, with such rights remaining limited to married spouses as you move east.

British Columbia, for example, affords nearly equal rights as between married spouses and common law partners with respect to estates matters. Notably, all provinces west of Ontario provide a right for common law partners to a preferential share of a deceased partner’s intestate estate. The same may also apply in certain Indigenous estates governed by the Indian Act.

East of Ontario, Quebec has recently made advances in this area with its introduction of Bill 56 which affords some inheritance rights for common law partners, but only those who are in a “parental union”, which means they have or adopt a (shared) child after June 30, 2025. This legislation is not retroactive but can be voluntarily opted-into for those not automatically eligible.

The Atlantic provinces generally provide very few rights for common law partners as compared to married spouses when it comes to estates matters.