Estate risks lurk in the legal thickets of ‘common law’ spouses

Communication – and legal advice – are key

The definition of who is and who is not a spouse, both for legal and income tax purposes, has changed a lot in the last few decades. Some previously discriminatory laws have been abolished (for example, the bar to same-sex couples marrying) and some rules have been updated to reflect societal norms (for example, a common law spouse is considered a spouse under the Income Tax Act (Canada)).

Unfortunately, there continues to be inconsistency in the law on who is considered a spouse. For example, a person will be considered a common law spouse (or partner) after just one year of cohabitation under the Income Tax Act. However, under the Ontario Family Law Act, a person will be considered a common law spouse only after three years of cohabitation, unless the partners have a child together earlier. Also, different provinces and territories define a common law spouse (or partner or domestic partner) in different ways. Some require certain steps to be taken, for example Nova Scotia, which requires a “domestic partnership” to be registered in order for it to be recognized at law.

Even if a person qualifies as a common law spouse, their rights can vary widely compared to married spouses. In Ontario, for example, a common law spouse may be entitled to spousal support upon the breakdown of a spousal relationship, but is not entitled to equalization of property, and has no rights of possession to a shared home owned by the other spouse on death or relationship breakdown.

A common law spouse is a potential dependant who can make a claim against the estate of their deceased spouse, and will be entitled to a priority interest in a deceased’s spouse’s pension plan (including under the Canada Pension Plan), but is not entitled to inherit any part of their deceased spouse’s estate if he or she dies intestate (without a will). However, a common law spouse may bring claims for an interest in property based on equitable principles to ensure fairness.

These differences are by no means uniform across Canada. In Quebec, common law spouses have very few if any rights either on relationship breakdown or death. In British Columbia, Saskatchewan, Manitoba, and Nunavut, common law spouses or partners are also considered “spouses” (if they fall within that province’s definition of a common law spouse or partner) for property equalization/division claims and on an intestacy where they are entitled to a share of the estate. Other provinces, such as Ontario, allow common law spouses some rights but not others.

Given the modern reality of so many spousal relationships arising outside of marriage, many people in common law relationships might think common law spouses have more rights than they do and might therefore fail to put good planning in place. On the other hand, some might be surprised that common law spouses have such extensive rights in some provinces and territories, despite a couple’s choice not to marry and become subject to legal rights acquired on marriage.

It is overdue for Ontario, and other provinces, to review their laws governing common law spouses’ rights on relationship breakdown and death. Spouses need to know their rights and the steps they must take to ensure their intentions are carried out and that they are protected. For example, while a common law spouse may make a claim as a dependant of their deceased spouse’s estate, this typically will require a court proceeding (especially if their deceased spouse’s next of kin are not sympathetic), which can take years, incur significant costs, and cause ill will among family members.

A common law spouse might also have an unpleasant surprise in store when their relationship breaks down if their former spouse makes an equitable claim to their property on the basis of certain legal principles available to them. Having not married, a spouse might think their property is not subject to claims by their spouse.

The better approach is to ensure proper marital and estate planning is discussed and is in place so there are no surprises! It is key for each spouse to understand their legal rights and the expectations each has. Spouses need to have a will and powers of attorney for property and personal care, as well as in some cases a domestic contract, which can protect both married and common law spouses from unexpected claims and undue hardship. As with so many matters, good communication with each other and expert legal advice is critical.

Susannah Roth is a partner at O’Sullivan Estate Lawyers, based in Toronto. Her practice focuses on estate administration, including cross-border and multijurisdictional administration, advising attorneys and guardians of property, executors, administrators and beneficiaries, real estate transfers and rectification, estate planning (including wills, powers of attorney, insurance and testamentary trusts), and estate litigation. This article originally appeared in the O’Sullivan Estate Lawyers blog. Reprinted with permission.

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