Today I received a phone call from a common law spouse seeking to do a probate application after her partner suddenly passed away from a heart attack last week. Unfortunately, her circumstances formed a perfect storm, leading her to receive no inheritance – her partner did NOT have a Will, they were NOT married, and their real estate was titled as tenants in common rather than joint tenants. What she told me is a situation I see more often than you’d think in Ontario, and it’s a painful surprise for families. There was no will, they were not married, and the home was held as tenants in common, not joint tenants. That combination can result in a common-law partner receiving no inheritance at all.
Does a common law spouse automatically inherit in Ontario if there’s no will
The short answer is NO. If you live with your partner in Ontario as common law, you may assume you automatically inherit if they pass away, especially if there is no will. In Ontario, that is often not true, and families can be shocked to learn the estate may go to children or other relatives instead.
When there is NO Will, the common-law spouse can apply to become an executor to manage the estate, but they are not beneficiaries under the law. So they cannot receive anything unless the other beneficiaries willingly give it to them. Unfortunately, in this case, my caller’s partner’s young daughter will inherit everything.
Why tenants in common can create a second problem
The real estate title made things even harder. The couple owned the property as tenants in common, meaning each person owned a defined share. My caller owns 50 percent, and her late partner owned the other 50 percent. After death, his 50 percent does not automatically transfer to her. It becomes part of his estate and will pass to the daughter under the intestacy rules.
This can lead to conflict about the next step. The daughter wants to sell, while my caller wants to keep the home. Under the law, her deceased partner’s 50% will go to the daughter after probate is granted. So the daughter can sell 50% of the property to anyone, without my caller’s agreement. But in reality, no buyer is going to buy half of the property. So if the daughter and my caller cannot reach an agreement, the daughter would need to sue (partition of sale) – which would incur high legal fees associated with litigation.
How to prevent this situation in Ontario
All of this could have been avoided if her partner had done a Will with a law firm experienced in Probate Application and Estate Administration. In the Will, he could have given everything to his common -law partner of 20 years, or at least given her the property, to avoid this mess. The lawyer could also include an affidavit stating that, while giving the entire property to the common-law partner may not seem fair, it reflects the deceased’s true intention. This way, the daughter cannot successfully challenge the Will.
A well-drafted Will is not just about who gets what. It is also about reducing the risk of dispute, delay, and legal costs for the people you love. If you are in a common-law relationship in Ontario and you own a home or share finances, it is worth reviewing your will, your title structure (joint tenants vs. tenants in common), and your beneficiary designations so your family is not left dealing with avoidable surprises. Need help from our trusted probate and estate lawyers? Feel free to book a 1st free consultation with us here: https://calendly.com/sabrina-668/1stfreeconsult
