It can make a big difference, legally, whether you are married or “common law” if you and your partner separate, or one of you unfortunately passes away.

In Ontario, common law spouses are treated differently than married spouses, at law, if there is a separation or a death during the relationship.

For example, did you know that:

  • unlike married spouses, common law spouses have no automatic rights upon the death of a spouse who does not leave a will, while married spouses are statutorily entitled to a receive a “preferential share” and additional percentage of a predeceasing married spouse’s estate on an intestacy (i.e., dying with no valid will in effect);
  • divorced spouses are treated the same as common law spouses on the death of the other partner – no ‘preferential share’;
  • married spouses have the right to elect for an equalization of net family property, pursuant to Ontario’s Family Law Act on death of the other married spouse, unlike common law spouses who have no such rights on death of the other;
  • marriage automatically revokes a will (unless executed in contemplation of the marriage), while enjoying a common law relationship has no such effect; and
  • a separation (unless there is a valid separation agreement directly addressing the issues) does not revoke a will or any gifts made to a separated spouse, but gifts made under a pre-separation will to a divorced spouse are generally revoked by statute and the divorced spouse is regarded legally as having predeceased the spouse who dies.

So, there are very important differences between married and common law spouses in the event of a relationship breakdown or the death of one of the partners.

It is important to know your rights in your relationship, which can also be altered by a solid domestic contract, including to avoid potentially harsh consequences to a surviving common law spouse, who may be left a legacy of litigation, unintentionally.

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