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Right to inherit and receive support from common-law spouse's estate upon death

Region: Ontario Answer # 0131

If someone dies without a Will, the law says that they have died intestate, which means that they left no instructions as to how their property is to be divided and distributed. In these circumstances, the Ontario Succession Law Reform Act (SLRA) governs how their property will be distributed to the surviving relatives.

Under the SLRA married and common-law spouses are treated differently.  A legally married spouse has automatic rights to their deceased spouse’s property. If a common-law spouse dies dies without a Will, or does not adequately provide for their common-law spouse in their Will, there is no automatic right to an inheritance, or to property through an equalization payment.

Dependant support claim

However, under the SLRA, a common-law spouse can make a claim in court to seek support from the estate as a dependant.

Who qualifies as a common-law “spouse” dependant?

Under the SLRA, common-law couples are considered to be spouses if they:

  • have cohabited for at least three years, or
  • are in a relationship with some permanence and have a child together.

Who qualifies as a dependant?

To be a dependant, the surviving common-law spouse must prove that they were receiving support from their deceased spouse, or that they had a legal right to receive support from them before they died.

Filing a dependent’s support claim

To receive support as a dependant, a common-law spouse must make a dependant support claim by filing a Notice of Application with the Court. A claim for support may be made based on financial need, or on legal, or moral and ethical obligations, and must be supported with an Affidavit and documented evidence provided by the spouse.

If the Court decides that the person is a dependant spouse, has a legitimate need for support, and that the deceased did not provide adequate provision for support, the Court may order a certain amount of money to be paid to the spouse out of the estate. A judge can award a lump-sum payment, periodic payments, or a transfer of a specific asset to a surviving common-law spouse. The Application for dependent support must be filed within six months of the Certificate of Appointment of an Estate Trustee (executor) being granted.

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