Marriage vs Common-Law: What Happens When You Die?

Marriage vs Common Law: What Happens When You Die?

Think a marriage certificate is just a piece of paper? Think again – especially when it comes to your estate.

Many couples assume that living common-law for years gives them the same legal protections as marriage. But here’s the uncomfortable truth: in Ontario, when it comes to death and estates, marriage still comes with significant statutory protections that common-law partners simply don’t have.

Let’s break down what’s different.

The Big Three Differences

1. Election Rights (The Biggest Gap)

Married spouses get a choice when their partner dies. They can either:

• Take what’s in the Will, OR
• Choose an “equalization payment” (essentially what they’d get in a divorce)

This is huge. It means a surviving spouse can’t be completely cut out—they have a statutory safety net.

Common-law partners? You get what’s in the Will. Period. If your partner leaves you nothing, you have no automatic right to an equalization payment, no matter how long you’ve been together.

2. Dying Without a Will

If your married spouse dies without a Will in Ontario, you automatically receive a “preferential share”:

• $350,000 (for deaths after March 1, 2021)
• Plus a portion of anything remaining

Common-law partners who die without a Will? Their partner gets nothing automatically. Zero. The estate goes to children, parents, or other relatives as if the common-law partner didn’t exist.

3. Support Claims

Here’s one area where there’s some protection for both: married spouses AND common-law partners can make a claim for support from the estate if the deceased didn’t provide adequately for them.

This isn’t automatic money—you have to apply and prove you were a dependent—but at least the door is open.

What About RRSPs and Other Registered Plans?

Good news here: the federal government treats married and common-law partners equally. Both can receive registered plans (RRSPs, RRIFs) on a tax-deferred basis when their partner dies.

Ontario vs The Rest of Canada

Ontario sits in the middle of the pack. Generally:

• Western provinces (especially BC) give common-law partners rights that are much closer to married spouses
• Eastern provinces offer very limited protections for common-law partners
• Quebec recently introduced some inheritance rights, but only for common-law couples who have or adopt a child together after June 30, 2025

The Bottom Line

Being common-law isn’t “basically the same as married”—not when someone dies. If you’re in a common-law relationship in Ontario, you need to be proactive:

✓ Make a Will that clearly provides for your partner 

✓ Consider a cohabitation agreement to formalize property and support arrangements 

✓ Name your partner as beneficiary on registered plans, life insurance, and other accounts

✓ Don’t assume your partner is automatically protected

And if you’re married? Don’t get complacent. A Will is still essential to make your wishes clear and avoid family disputes.

Need Help with Your Estate Planning?

At Smartwills, we help Ontario families navigate these complex issues with compassion and clarity. Whether you’re creating a Power of Attorney, updating your will, or dealing with a capacity issue, we’re here to guide you.

Check out our article on The $660,000 Wake-Up Call