Common-Law Spouses and Estate Claims in Ontario
Many long-term relationships today do not involve legal marriage. But when one partner passes away, estate rights can become uncertain, particularly for common-law spouses in Ontario. Unlike married spouses, common-law spouses do not automatically receive the same inheritance rights or statutory entitlements. This can come as a shock during an emotionally and financially vulnerable time.
This guide explains the current legal landscape in Ontario as of 2026, including what common-law spouses can claim, what they cannot, and what legal remedies may be available through litigation.
Common-Law Spouses vs. Married Spouses: Key Distinction in Ontario Estate Law
Ontario’s legislative framework treats common-law spouses differently from married spouses in the context of estates. Important statutes include:
- Family Law Act (FLA)
- Succession Law Reform Act (SLRA)
- Estates Act
Under these laws, many property-related entitlements are reserved for legally married spouses, not common-law partners.
- No Equalization Rights Under the Family Law Act
Under the FLA, when a married spouse dies, the survivor may choose between:
- Taking what the deceased left them in their will, or
- Electing to receive an equalization payment, based on the division of net family property
Only a married spouse can make this election. Common-law spouses are excluded and cannot pursue equalization under s. 6 of the FLA.
The Supreme Court of Canada decision in Nova Scotia (Attorney General) v. Walsh [2002] 4 SCR 325 upheld this distinction, making constitutional challenges unlikely to succeed.
- No Automatic Inheritance on Intestacy
If a person dies without a will (intestate), the SLRA grants the preferential share (currently $350,000) and a share of the remainder to the surviving married spouse.
By contrast:
- A common-law spouse has no automatic intestacy entitlement
- They cannot receive the preferential share
- They do not inherit property solely by virtue of the relationship
This remains a major gap in estate protection for unmarried partners.
A 2022 amendment (SLRA s. 43.1) also clarified that separated spouses are excluded from intestate spousal entitlements.
- Dependant Support Claims — A Key Avenue for Common-Law Spouses
While common-law spouses are excluded from automatic inheritance and equalization, they are included in the SLRA’s definition of a dependant.
A common-law spouse may apply for support if they:
- Cohabited continuously for at least three years, or
- Lived in a relationship of some permanence and shared a child
Dependant support may provide:
- Lump-sum financial support
- Ongoing support
- Use of certain property
- Compensation for financial needs
However, this requires litigation, it is not automatic.
Where both a married spouse and common-law spouse assert claims, the FLA gives priority to the married spouse for equalization, placing the common-law dependant claim behind it.
- Estate Trustee (Executor) Priority
Under the Estates Act, a common-law spouse may share priority with a married spouse to apply to become estate trustee. However:
- This offers administrative control, not property rights
- It may conflict with legal claims they intend to bring
It is generally inappropriate for a claimant to act as trustee due to conflicts of interest.
- Equitable Remedies: Constructive Trust, Unjust Enrichment & Quantum Meruit
When statutory rights fall short, common-law spouses often rely on equitable claims such as:
- Unjust enrichment
- Constructive trust
- Quantum meruit
These may grant:
- Ownership interests in property
- Monetary compensation
Speak With a Toronto Wills & Estates Lawyer Today
If you’re asking yourself, “Do I have rights?” or “Is it too late to make a claim?”, you need clear answers now.
At Z Legal P.C., we assist spouses, families, and beneficiaries across Toronto and Ontario with:
- Estate litigation & will disputes
- Dependant support claims (including common-law spouses)
- Intestacy disputes (dying without a will)
- Unjust enrichment & constructive trust claims
- Claims involving separated spouses
- Probate and estate administration challenges
We will help you:
- Identify the claims you may be entitled to
- Determine applicable deadlines and limitation periods
- Assess the strength of your legal position
- Protect your financial interests before time runs out
Ontario imposes strict deadlines on estate claims and certain rights are lost permanently if not asserted in time. Exceptions exist, but they are narrow. Do not take the risk.
📞 Contact Z Legal P.C. today for a confidential consultation with a Toronto estate lawyer.