By Tracey Rynard, Associate
Many married couples mistakenly assume that if they don’t have a Will their spouse will, by default, inherit their estate. As with most things it is dangerous to ass-u-me.
The law governing intestacy (dying without a valid will) in Ontario is stated in the Succession Law Reform Act (the “Act”). Legally married spouses of an intestate deceased with children are entitled to a preferential share of the estate only. That preferential share is equal to $200,000 plus either ½ of the remainder (if one child) or 1/3 of the remainder (if more than one child). To further complicate matters, the spouse of the intestate may also apply for equalization under the Family Law Act.
Common law families are increasingly common (pun intended) in Ontario. Though much law has developed to recognize common law spouses and to provide the same benefits to those couples as those legally wed, it is a reality that, in Ontario, common law spouses do not have rights to their deceased partner’s estate. Therefore, if you have a common law spouse and do not provide for them in a valid will, the common law spouse will not inherit under the Act. In the case of a common law couple with children, the children will inherit their deceased parent’s estate equally and the common law spouse is statutorily entitled to nothing.
Although a dependent common law spouse can apply to the court for a support award, this can be a time intensive and expensive process. In situations where the couple has cohabited for a lengthy time, spouses may be able to argue for ownership of property based on trust principles. For example, a common law spouse who contributed towards a home through mortgage or other bill payments may have a claim for a constructive trust, however the onus is on the surviving spouse to prove the contributions. Again this is a long and expensive proposition.
These difficult situations can become even worse where one of the common law spouses is still legally married to a previous spouse. Until legally divorced, a separated spouse is still a spouse under the Act and will be entitled to the preferential share of their separated spouse’s estate (or the entire estate if there are no children).
Same sex couples are caught by the Act, as the Act defines a ‘spouse’ as two persons who are married to each other.
It is doubtful that a caring spouse would want to put their partner, their estate and their other beneficiaries through a protracted court battle. With a properly drafted and prepared Last Will and Testament all of these adverse consequences can be avoided.