April 5, 2019

By: Samantha Rosen-Lawlor

Common-law couples do not have the same rights as married couples. If your common-law partner passes away without a will, you may not have many legal options at your disposal to protect your rights to his or her estate. It’s important to understand the options you can pursue in this situation, and to discuss them with your partner as you plan your wills to make sure each of you is protected.

As outlined on s Steps to Justice page, there are a couple of alternatives that a surviving partner can look into. Below is a very brief summary of your options. For more information, it’s best advised to consult a legal professional to find out how these options may be applied to your specific situation.

Option 1:

The will – If your partner left you anything in the will (that was rightfully his or hers to bequeath) then it’s yours (barring anyone contesting the will).

Option 2:

No will – if there is no will, then the estate is divided equally by the next of kin. This usually means any surviving children, siblings, parents, or extended family. Unfortunately, common-law couples do not factor into intestacy rules.

Option 3:

Property outside of a will – in some cases, certain property can pass outside of a will. For example, a jointly held bank account would then pass to the next surviving owner, despite what intestacy rules may dictate. If you and your partner owned property together, and your partner’s family wants to now take ownership of this property, joint tenancy rules would apply.

Life insurance policies also pass outside of a will. If you were named as your partner’s sole beneficiary to an insurance policy, then you would receive these assets.

Option 4:

Unjust enrichment – if your common-law partner passed away without a will, you can make a claim to unjust enrichment for certain properties. For example, if you were never married, matrimonial house rules would not apply to you. But you can make a claim that you contributed to multiple renovations to a shared home and that it would be unfair for other beneficiaries to benefit from the added value instead of yourself. That is just one example of a type of claim you can make.

However, these types of cases are very complex, so it’s wise to seek legal counsel for more information.