Common-Law Partners and Intestacy in Ontario: You Do Not Automatically Inherit
If your partner dies in Ontario without a will and you were not legally married, you inherit nothing under the intestacy rules. Not a reduced share, not a share after the children, nothing. It makes no difference whether you lived together for three years or thirty, whether you raised children together, or whether everyone in both families regarded you as spouses. Part II of the Succession Law Reform Act distributes an intestate estate to married spouses and blood relatives, and a common-law partner is neither. This is among the most damaging misconceptions in Ontario estate law, and this article covers what the rules actually say and what a surviving partner can do instead.
What the Intestacy Rules Say
When someone dies without a valid will, Part II of the Succession Law Reform Act imposes a fixed distribution that has nothing to do with what the deceased would have wanted.
The order runs: a married spouse first, then children and their descendants, then parents, then brothers and sisters, then nieces and nephews, then next of kin by degree of blood relationship. Where no qualifying relative exists at all, the estate passes to the Crown.
Where there is a married spouse, the amounts depend on whether there are children:
Married spouse, no children. The spouse takes the entire estate.
Married spouse and children. The spouse first receives the preferential share, currently $350,000 for deaths on or after March 1, 2021. It was $200,000 for deaths between April 1, 1995 and February 28, 2021, so the date of death governs which figure applies. If the estate is worth less than the preferential share, the spouse takes all of it. Above that, the residue is divided: with one child, the spouse and the child take half each; with two or more children, the spouse takes one third and the children share the remaining two thirds equally.
The word doing all the work in every one of those sentences is "married."
Married and Common-Law Compared
| Married spouse | Common-law partner | |
|---|---|---|
| Automatic inheritance on intestacy | Yes, under Part II | None, regardless of relationship length |
| Preferential share | $350,000 for deaths on or after March 1, 2021 | Not available |
| Right to elect for an equalisation payment | Yes, under family law legislation | No |
| Dependant support claim | Available | Available |
| Claim based on contribution to property | Available | Available |
| Jointly held assets and beneficiary designations | Pass outside the estate | Pass outside the estate |
The bottom two rows are where a surviving common-law partner's position is usually recovered.
A Separated Married Spouse May Also Lose Out
The mirror image is worth knowing, because it catches people from the other direction.
A married spouse who was separated from the deceased at the time of death can lose their intestacy entitlement. Section 43.1 of the Succession Law Reform Act treats a separated spouse, in defined circumstances, as though they had died before the deceased. Those circumstances include living separate and apart because of a breakdown of the marriage for a period of three years immediately preceding the death, and cases where a valid separation agreement, a court order, or an arbitration award has settled the affairs arising from the breakdown. In every case the spouses must also have been living separate and apart as a result of the breakdown at the time of death.
The section carries an important transition rule. It applies only where the qualifying event occurred on or after January 1, 2022. The three-year period of living separate and apart must have begun on or after that date, which means that route has only been capable of operating since January 1, 2025, and a separation agreement, court order, or arbitration award counts only if it was made on or after that date. A spouse who began living separate and apart before 2022, and who has no later agreement, order, or award, is still treated as a spouse on an intestacy.
So an intestate estate can produce a situation where a separated legal spouse receives nothing and a long-term common-law partner also receives nothing, and the estate passes to adult children or to siblings.
What a Surviving Common-Law Partner Can Actually Claim
Excluded from intestacy does not mean excluded from everything. Four routes matter, and the first is the most important.
Dependant support. Part V of the Succession Law Reform Act allows a dependant to apply to the Superior Court of Justice for support out of the estate where adequate provision has not been made. A common-law partner can qualify as a dependant, and this is the principal remedy the legislation leaves open. The claim depends on the deceased having been providing support, or having been under a legal obligation to provide support, immediately before death. It applies to intestate estates and to estates with a will alike.
The six-month deadline. This is where good claims are lost. A dependant support application must generally be brought within six months of the grant of the estate certificate. Courts have discretion to allow a late claim in respect of the undistributed portion of the estate, but that discretion is not something to rely on, and once an estate has been distributed the practical remedy narrows sharply. If you are in this position, the clock is the first thing to establish.
A claim based on your contribution. Where you contributed to property held in the deceased's name, through money, labour, or years of unpaid work, you may have a claim in unjust enrichment or for a constructive trust. These are fact-heavy claims built on records rather than on the relationship itself.
Assets that pass outside the estate. Property held jointly with a right of survivorship, and registered plans or insurance policies naming you as beneficiary, pass to you directly and are unaffected by the intestacy rules. Check every account and every policy before assuming the position is as bad as it looks. Our guide to joint ownership with right of survivorship covers how that operates.
Pension plans and survivor benefits frequently define spouse to include common-law partners, on their own terms, independent of estate law. Workplace pensions and Canada Pension Plan survivor benefits are worth checking early.
Why This Catches So Many People
The confusion is understandable rather than careless.
Ontario law treats common-law partners as spouses for several purposes, including spousal support obligations and a number of benefit and tax rules. People reasonably conclude that the same is true of inheritance. It is not. Property division and inheritance are the two areas where the distinction between married and common-law remains sharpest, and inheritance on an intestacy is the sharpest of all.
The other reason is that the problem is invisible until it is acute. Nobody discovers it while it can still be fixed by a thirty-minute appointment.
What Fixes It
For couples, a valid will. This is one of the few problems in estate law with a complete and inexpensive solution, and it removes the issue entirely. Beneficiary designations on registered plans and insurance, and joint ownership where that is appropriate, cover the rest.
For a partner who is already in this situation, the first step is establishing the deadline, because it governs everything else. Our overview of the Succession Law Reform Act covers the wider framework, including how the intestacy rules interact with dependant claims.
Frequently Asked Questions
Do common-law partners inherit in Ontario?
Not under the intestacy rules. Part II of the Succession Law Reform Act provides for married spouses and blood relatives, and a common-law partner is neither, regardless of how long the relationship lasted. A common-law partner named in a valid will inherits exactly as the will provides.
How long do you have to live together to inherit in Ontario?
There is no period that creates an inheritance right. Length of cohabitation matters for other purposes, including spousal support and dependant support claims, but no amount of time converts a common-law partner into a spouse for intestacy.
What is the preferential share in Ontario?
It is the amount a married spouse receives from an intestate estate before the residue is divided with the children. It is $350,000 for deaths on or after March 1, 2021, and was $200,000 for deaths between April 1, 1995 and February 28, 2021. It is not available to common-law partners.
Can a common-law partner make a claim against the estate?
Yes. The main route is a dependant support application under Part V of the Succession Law Reform Act, where the deceased was providing support or was under a legal obligation to do so immediately before death. Claims based on contributions to property, through unjust enrichment or a constructive trust, may also be available.
How long do I have to bring a dependant support claim?
Generally six months from the grant of the estate certificate. A court has discretion to permit a late application against the undistributed portion of the estate, but that is discretionary and the practical position worsens considerably once the estate has been paid out.
What if we owned the house together?
If it was held in joint tenancy with a right of survivorship, it passes to you outside the estate and the intestacy rules do not touch it. If it was held as tenants in common, or in the deceased's name alone, it forms part of the estate and a claim would need another basis.
Does a separated married spouse still inherit?
Not necessarily. Section 43.1 of the Succession Law Reform Act treats a separated spouse as having predeceased in defined circumstances, including a separation of three years immediately preceding the death arising from the breakdown of the marriage, or a separation settled by a valid separation agreement, a court order, or an arbitration award. The section applies only where the qualifying event occurred on or after January 1, 2022, so a separation that began before 2022, with no later agreement, order, or award, does not engage it.
If your partner has died without a will, the six-month period is the first thing to pin down, and it starts from a date you may not have. Book a free call as early as you can.
This article provides general information about Ontario law and is not legal advice. Speak with a lawyer about your specific circumstances.
