Property Issues for Married Spouses vs. Common-Law Partners

There was a time when couples in Canada had limited options when it came to their rights in relationships.

Though Canadians are more likely to enter common-law relationships today, they still don’t have the same rights as married couples when it comes to estate laws. This can lead to unnecessary difficulties and worries when a partner passes away.

Here’s everything you need to know about estate laws for common-law partners.

How Is Estate Handled After Death in Canada?

When a person dies, their assets and liabilities make up their estate. This distribution is determined according to the deceased’s wishes.


Even if you’re not legally obligated to have a will in Canada, it certainly comes with a lot of advantages. That’s because if someone dies without a will, their estate will be distributed according to provincial laws. These laws can vary from region to region with how they administer a deceased person’s estate.

How Do Canadian Laws Protect Married Couples?

A couple has to make many decisions before starting a new life together. However, finance is probably the most important aspect that many couples need to think about. This is especially important in regards to choosing marriage or common-law relationships.

Marriage is a legal union that resembles a business agreement. In order to be married, you need to have a legal license and make an agreement toward a common goal. This way, you can gain some advantages like being entitled to estate laws.

A spouse’s share in their partner’s estate largely depends on the deceased person’s will. Similarly, it also depends on if they have any descendants.

However, if the deceased individual had no descendants or will, their spouse will possibly inherit their property as their next-of-kin. In most provinces, spouses also automatically get the matrimonial home.

What Is Common Law Partnership?

Societal shifts in Canada have changed how people perceive relationships. Many people today question the institution of marriage, especially when they deal with their finances instead. A recent poll by the Angus Reid institute revealed that approximately 53 percent of Canadian people thought marriage was unnecessary. Moreover, a whopping 59 percent of them claimed that those who legally marry shouldn’t gain extra benefits that common-law couples don’t have.

In Canada, having a common-law status refers to two people living together without marriage in a marital relationship. Canada recognizes common-law relationships in certain situations. However, their rights can vary when it comes to taxes, immigration, and estate planning.

Are There Laws Protecting Common-Law Partners in Canada?

It’s a prevalent misconception in Canada that common-law spouses get the same rights in estate matters as married spouses. Unfortunately, they’re not always given equal rights in most cases as far as estate planning and division of property are concerned.

To put it simply, there are some provinces that give common-law partners the same rights as married spouses while others don’t.

For example, in Manitoba, the Family Property Act applies to common-law partners, provided they’ve had a conjugal relationship for at least three years. This means that from 2004, all laws pertaining to spouses were applied to common-law partners. So, if a person dies, their common-law partner will receive all or most of their property according to the Intestate Succession Act. In fact, according to the Family Property Act, the law will override a will if it neglects the surviving partner.

However, not all provinces have an equal view of common-law partnerships. In reality, they’re not given equal entitlement to a family property in Ontario. According to the Family Law Act, legally married spouses are entitled to receive equalization on the property after the death of a partner. The law assumes that both partners had equal share and contributions in the accumulation of wealth during the course of a marriage.

According to sections 44-49 of the Succession Law Reform Act, in the case of intestacies, only married spouses have the right to get a share in the deceased spouse’s estate. In this way, a common-law partner has no right to have a share in the deceased’s partner’s estate.

However, common-law partners can get a share in each other’s property under doctrines like unjust enrichment.

What Is Constructive Trust and Unjust Enrichment?

You are legally entitled to make a claim for a constructive trust to remedy unjust enrichment. However, you’ll have to provide evidence to back your claim.

According to this, you’ll have to show that you contributed to your deceased partner’s estate financially—for example, if you and your partner were engaged in a joint family venture unpaid or if you did unpaid work, you might get a share in the deceased’s estate. In this way, you can prove that your partner had a disproportionate share. The court will check if the partner was unjustly enriched at your expense.

The longer you’ve been in a relationship with more integrated finances and children, the more likely the court will find a joint family venture.

Want to learn more about family laws in Canada? Consider our services at Nanda & Associate Lawyers.

At Nanda & Associate Lawyers, we take pride in having one of the leading teams of family lawyers. With the Peel Region’s BEST Lawyer – General Practice company award, we ensure effective legal solutions for your problems.

We also offer an experienced team of immigration lawyers in Canada. We can offer you tailored services for immigration appeals, refugee claims, and spouse sponsorships.

Contact us now to find out more.

Disclaimer: This article is only intended for educational purposes and shouldn’t be used as a substitute for legal advice.

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