Estates & Wills & Trusts

Common-law spouses need a will to protect themselves

By Tony Poland, Associate Editor

Common-law spouses don’t have the same rights as married couples when a partner dies and need wills to protect themselves, Cornwall wills and estates lawyer Michele Allinotte tells

“Everybody thinks being common law is the same as being married, but it’s not,” says Allinotte, principal of Allinotte Law Office Professional Corporation. “In Ontario, common-law spouses don’t have any right to inherit if their partner dies without a will.”

She says it doesn’t matter how long a couple has been together or if they have children, “if your common-law partner dies without a will, you don’t have any rights to any of their property.”

Allinotte says without a will, the surviving spouse must go to court “to establish either a right to some sort of property division or credit based on equitable law principles.”

Allinotte says without a will, the surviving spouse must go to court “to establish either a right to some sort of property division or credit based on equitable law principles or to support as a dependent of the deceased.”

In such cases, that partner would need to prove how the relationship was structured. Did the couple pool their resources? Did one person pay rent to the other? How long did they cohabit? Were they in a conjugal relationship? Did they keep their possessions separate?

She says proving entitlement in court can be costly and the “financial hurdle” can be too onerous for some.

Allinotte says she advises people entering into common-law relationships to draft a cohabitation agreement, which is “the best thing to protect against death and/or separation.“

“It’s a contract outlining what would happen if one of them passes away, became incapable, or if they decide to separate,” she says. “The thing that people forget is that if your partner dies or becomes incapable, you're not necessarily fighting against the person you love, it's their family members or someone who has an adverse interest.”

Allinotte explains that some couples don’t consider the possibility that problems can arise, thinking “our family is getting along, there's no problem.”

“What happens in common-law relationships is that people sometimes don’t step back and think about what their legal situation means,” she says. “They're just living life, and there is also that presumption out there that the relationship is the same as being married so why worry about any of this stuff? But you really should.”

Which is why it’s important for common-law spouses to have a will, more so than someone who is single or married, Allinote says.

“The will governs what happens. You can appoint your spouse as your estate trustee. You can indicate how much of your estate they will inherit,” she says. “There are many things you can do in order to protect your partner.”

Couples should look at how they own their assets and how they will be divided when one partner passes away, Allinote says, adding there can also be complications if children are involved from a previous partnership.

“I always ask about the items in the couple’s home. Are they yours? Are they hers? Are they co-owned? How do you want to deal with that?” she says. “The last thing you want is for your loved one to die and someone saying, 'All of that furniture was my mother’s, so we’re taking it.'"

It’s much better to have an awkward discussion about property division while preparing a will than having to go to court to remedy the situation, Allinotte explains.

“Many things can come up, so it's vital to really think about it ahead of time and make sure that you're taking care of the person you love while ensuring that your wishes will be honoured,” she says.

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