The Marriage Myth
There is a widely held view that marriage is largely symbolic and that common-law relationships are functionally the same. In many respects, that is very true. Estate law, however, continues to draw meaningful distinctions, which tend to matter most when something goes wrong.
Common-law partners do not automatically stand in the same position as married spouses on death. There are areas of overlap, but there are also gaps, some of which can be significant. As lawyers famously like to say: it depends.
Intestacy: Where the Difference Becomes Apparent
Couples may leave the question of ‘what are we?’ unanswered, but the law does not.
Where an individual dies without a Will, Part II of the Succession Law Reform Act (“SLRA”) sets out a prescribed scheme of distribution. A married spouse is given priority within that scheme, including entitlement to a preferential share (currently $350,000) and, in some cases, the entirety of the estate.
A common-law partner does not fall within that statutory definition of “spouse” in the context of an estate. The practical effect is that they may have no automatic entitlement to the estate on an intestacy, regardless of the length or seriousness of the relationship. While married spouses also have special protections with respect to the matrimonial home, common-law spouses may not. Instead, they may need to consider advancing a claim, such as for dependant support under section 58 of the SLRA or a trust claim. These claims can provide meaningful relief, but they are fact-specific and often require litigation. As a result, a surviving common-law partner may find themselves having to incur legal costs upfront to assert their rights through the court in order to obtain relief that many assume would arise automatically.
The Election: An Additional Layer of Protection
Where there is a Will, married spouses have access to an additional safeguard that is not available to common-law partners. Under section 6 of the Family Law Act, a surviving married spouse may elect to receive an equalization payment under section 5, as if the marriage had ended immediately before death, rather than take under the Will.
That election does not guarantee a better outcome, but it does create an important choice. It allows a surviving spouse to step outside the terms of the Will if those terms are unfavorable and instead rely on the property-sharing framework that applies on marital breakdown.
A common-law partner does not have that option. Their remedies tend to be more indirect and, in many cases, more uncertain, often involving litigation.
Probate and Standing
There is also a practical distinction when it comes to administering the estate. A married spouse will typically benefit from priority when applying for a Certificate of Appointment of Estate Trustee, particularly where there is no Will.
A common-law partner may well be able to apply, and courts often recognize that practical reality. That said, the ability to take on the role of estate trustee does not establish a right to share in the estate. Those are separate questions.
Intentions Need Structure: Why Proper Planning Matters
It is not uncommon for couples to rely on joint ownership or beneficiary designations as a form of informal estate planning. While that may work as intended, it can also give rise to disputes over ownership, intention, or contribution – issues that are often highly fact-specific and difficult to resolve. In those cases, courts may ultimately find that an asset was held in trust rather than intended as an outright gift to the surviving party.
Common-law relationships are not without options, but they do require more deliberate planning where partners intend to benefit each other. That typically means taking clear, intentional steps – most often through a properly drafted Will, appropriate beneficiary designations, and, where relevant, carefully documented ownership arrangements. For some couples, a cohabitation agreement may also be appropriate. These steps are relatively straightforward, but leaving them undone can create unnecessary uncertainty.
Marriage as a Planning Tool
Estate law also has a way of producing outcomes that many do not expect. For example, it is possible, in certain circumstances, for more than one person to assert a common-law status for estate purposes. When that occurs, the analysis becomes highly dependent on the facts and can create competing claims that require careful navigation.
Marriage is not for everyone, and it is not a prerequisite to a strong or committed relationship. From an estate planning perspective, however, marriage does provide access to a statutory framework that can offer greater predictability and additional protection to the surviving spouse. Regardless of how a couple chooses to structure their relationship, the more important point is this: intentions should not be left to inference. A properly drafted Will remains the most reliable way to ensure that those intentions are carried out and to reduce the risk of avoidable disputes.
Final Thought
In a time where marriage no longer defines a relationship, it still shapes the legal landscape. From an estate perspective, marriage carries legal consequences that should not be overlooked. Whether those consequences are advantageous will depend on each individual relationship. The best approach is to understand the legal framework and plan accordingly, rather than assume the law will align with expectations. Clarity achieved during lifetime is almost always less expensive than clarity sought after death. If you are unsure how estate law applies to your relationship, contact one of our estates lawyers for tailored guidance.
At Mills & Mills LLP, our lawyers regularly help clients with a wide range of legal matters including business law, real estate law, estate law, employment law, health law, and tax law. For over 140 years, we have earned a reputation amongst our peers and clients for quality of service and breadth of knowledge. Contact us online or at (416) 863-0125. The material provided through the Mills & Mills LLP website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.
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