What Happens When a Common Law Partner Dies Without a Will?
Understanding Your Rights as a Surviving Partner
More Canadians are choosing common-law partnerships over traditional marriage. While the emotional commitment may feel the same, the legal rights are not. This becomes especially important if one partner dies without a will.
Many people are shocked to learn that a surviving common-law partner does not have the same automatic rights as a married spouse. The law treats these situations very differently.
What Happens When a Married Spouse Dies Without a Will?
If a married person dies without a will, their surviving spouse is automatically entitled to:
- The first $200,000 of the estate
- A share of the remaining estate, depending on how many children they had together
This protection does not apply to common-law spouses.
Married Spouse: Yes, automatic inheritance, $200,000 plus a share
Common-law Spouse: No automatic inheritance, must prove entitlement
What Happens to a Common Law Spouse?
If a common law partner dies without a will, their estate usually goes to:
- Their children, if they have any
- If no children, then to their parents or siblings
The common law partner receives nothing automatically. To claim a share of the estate, they must go to court and prove one of the following:
- They were financially dependent on the deceased
- They contributed to the acquisition, maintenance, or preservation of an asset
- They were involved in a joint family venture, where both parties contributed toward shared goals and property
These legal routes involve constructive trust claims, which are complicated and require legal support.
Court Is Not a Guarantee
A judge may decide to award a share of the estate to a common-law spouse, but this is not automatic. It is also not easy. The burden of proof is high, and outcomes are unpredictable.
The law makes a clear distinction between common law and married relationships. That difference can be painful and costly if your partner dies without preparing.
Even a Will Can Be Changed
While many common-law couples name each other in their wills, either partner can revise their will at any time without notice. This means your inheritance can be removed without your knowledge or consent.
Unless there is a written agreement in place, you have no guaranteed protection.
A Cohabitation Agreement Can Protect You
A cohabitation agreement is one of the most effective ways to secure your rights, both in life and after death. This agreement can clarify:
- What happens to assets if one partner dies
- What happens in the event of separation
- Each partner’s expectations and contributions
Whether you are named in the will or not, this agreement adds a second layer of protection and shows intent in the eyes of the court.
If You Don’t Have an Agreement, Keep Records
In the absence of a will or cohabitation agreement, ownership will come down to documentation. That means you should:
- Keep receipts for major purchases like cars, furniture, or art
- Store proof of ownership in a safe and accessible location
- Document contributions to household expenses and renovations
Keeping a paper trail can make it easier to claim what is rightfully yours during a separation or after the death of a partner.
We Can Help You Protect Yourself
Our lawyers understand the unique challenges common-law partners face. We can help you:
- Understand your rights
- Draft a cohabitation agreement that protects your future
- Review your estate planning alongside your family law arrangements
You do not need to wait for a crisis to start planning. Protect your future now, and avoid unnecessary hardship later.