Are Common Law Partners Protected if You Die without a Will?

Are Common Law Partners Protected if You Die without a Will?

In Ontario, Canada, there are certain implications related to Estate Planning and Wills for individuals who are not married. These implications can affect how your assets are distributed after your passing. It’s important to note that laws can change, and legal advice should be sought from a qualified professional based on your specific situation. Here are some general considerations that will create problems should you decide not to prepare a Will. Sometimes this avoidance comes as a result of not having attained your divorce.

However, there can be some serious implications as a result of not addressing your relationship definition. Here are some things to consider…

1. Intestacy Rules: If you pass away without a Will (intestate), Ontario’s intestacy rules will determine how your Estate is distributed. In a marriage, there are spousal rights that provide some level of protection for the surviving spouse. However, if you’re not married, your partner would not automatically inherit from your Estate, potentially leaving them without any entitlement. This really gets messy if you have moved on and partnered but have not yet gotten clarity and closure of your previous marital relationship.

2. Common-Law Partners: In Ontario, common-law partners may have certain rights to their deceased partner’s Estate, but these rights are generally more limited compared to married spouses. The rules for common-law partners can be complex and may require specific legal steps to establish entitlement.

3. Property Division: If you’re not married and you own property with your partner, the property will not automatically transfer to you upon your partner’s death. Proper documentation, such as joint tenancy with right of survivorship, might be required for a seamless transfer.

4. Spousal Support Claims: Married spouses have legal rights to spousal support in the event of separation or divorce. Common-law partners also have potential rights to spousal support if they meet certain criteria. However, these rights are not automatically extended to unmarried partners.

5. Estate Taxes and Benefits: Married spouses often have certain tax benefits and exemptions, such as the spousal rollover for capital gains tax purposes. Unmarried partners might not be eligible for these benefits, potentially resulting in higher taxes upon the transfer of certain assets.

6. Dependents: In the context of a Will, dependents (such as children) have certain rights to claim support from your Estate. However, the definition of “dependents” might differ depending on whether you’re married or not.

To address these risks and ensure your wishes are followed after your passing, it’s crucial to have a comprehensive and legally valid Will in place. Working with an Estate Planning lawyer is highly recommended to create a Will that accurately reflects your intentions and accounts for your unique circumstances. This becomes even more important if you have a partner or dependents who might not be automatically entitled to inherit from your Estate under Ontario’s laws.

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