Separated from one, common-law with another – who gets what?


Matthew Urback Head Shot

People who live common-law with a new partner after the breakdown of a marriage are advised to get their affairs in order — and get a will, Toronto litigator Matthew Urback tells

“If that person were to die, it could be a messy situation,” says Urback, associate with Shibley Righton LLP. “Even if you were with a new spouse in a common-law relationship for decades, the law says that if you’re married, your former spouse will have an entitlement to your estate.”

The way the law treats people who die without a will — or intestate — is set out in Ontario’s Succession Law Reform Act, which explicitly details how an estate will be divided between surviving family members and relatives, “with spouse defined in that circumstance as ‘two people who are married each other,’” he explains.

If someone is in a common-law relationship and they don’t get a divorce to formally end their earlier marriage, Urback says the Act will stipulate that the former spouse has an entitlement to the estate, even if they parted decades ago.

“People should prepare a new will if they want to provide for their new spouse and any children,” he says. “If not, there is the possibility that the estate will go to the previous spouse, and the common-law partner may be left with nothing.”

When it comes to passing on your estate, “It’s much cleaner to be legally married rather than common-law,” he says.

Urback strongly recommends that everyone should have a will, and keep it updated as circumstances change.

“People want to have the freedom to make their own financial decisions in life,” he says. “Even in death, they should have the right to deal with their assets as they wish. Those without wills are abandoning that right, and their estate will be at the mercy of the law.”

If there are any dependents in the common-law union, they would be in a good position to make a claim for support, Urback says, noting the Succession Law Reform Act provides two definitions of “spouse” — one that applies to the interpretation of wills and the other to the support of dependents.

“When it comes to support, the Act doesn’t differentiate between a living-together spouse and a separated spouse,” he says, adding that anyone in a common-law marriage that has lasted for more than three years, or those in a relationship of some permanence with a child, are considered spouses when it comes to support payments.

Legal fights are quite common if someone in a second marriage dies without a will, Urback says, especially if there are children from each relationship.

“There is often tension between the children from the first marriage and second spouses,” he says. “If a parent dies without a will to spell out their wishes for the estate, that’s the start of a court battle, and a relationship that was never on solid footing has just been steered further off course.”

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