Estate law in Ontario, Canada, presents distinct considerations for surviving spouses, whether married or common-law, depending on the presence or absence of a will. Delving into the legal frameworks provided by the Family Law Act (FLA) and the Succession Law Reform Act (SLRA), this article examines the rights of surviving spouses and common-law partners under various scenarios. For a more comprehensive exploration of how marriage, divorce, and separation intersect with succession law, please refer to this article.
Rights of a Surviving Married Spouse
With a Will
When a married spouse passes away with a valid will, the distribution of their estate typically follows the document’s directives (if the will is not contested). This means that if the surviving married spouse was named as a beneficiary in the will, they will receive the gift unless the will is contested. However, the FLA safeguards the interests of surviving married spouses. The FLA entitles married spouses to an equalization of net family property upon the death of their partner, irrespective of the provisions in the will. This ensures a fair distribution of assets, even if the surviving spouse is disinherited in the will.
Therefore, if the deceased’s will allocates less to their spouse than what they would receive in a divorce settlement, the spouse has the right to contest the will and opt for the entitlement they would have received as if divorced. It’s important to note that these rights are distinct from any outstanding support obligations and may potentially stand apart from any existing or future support claims.
Without a Will
In cases where a married non-separated spouse passes away without a will (intestate), the SLRA governs the distribution of the estate. If the deceased had no children, the surviving spouse inherits the entire estate. However, if there are children, the spouse is entitled to the first $350,000 of the estate, and a portion thereafter depending on how many children are left behind. This scheme of distribution excludes any assets held jointly between the two spouses and any beneficiary designations for the surviving spouse.
Rights of a Surviving Common-Law Partner
With a Will
When a common-law partner passes away with a valid will, the distribution of their estate typically follows the document’s directives (if the will is not contested). This means that if the surviving common-law partner was named as a beneficiary in the will, they will receive the gift unless the will is contested. However, unlike married spouses, a common law partner has no right to equalization of property in lieu of inheritance under the FLA.
Without a Will
For common-law partners, the rights differ from those of married spouses, when it comes to intestacy. If there is no Will, a common-law partner gets nothing under the property distribution scheme set up under the SLRA.
With or Without a Will
A common-law partner may have a few claims they could be entitled to from the deceased’s estate.
A common-law partner may be able to claim the deceased’s pension, and if successful, the pension transfers directly to the common-law partner, and it does now flow through the deceased’s estate.
Beneficiary designations on pensions, registered accounts (RRIFs, RRSPs, TFSAs), and insurance products (segregated funds and life insurance) remain unaffected. If the deceased named their common-law partner on beneficiary designations, the common-law partner will receive these funds, unless there is a dispute concerning these funds.
Additionally, a financially dependent common-law partner may pursue a dependent support claim. Spousal or child support obligations are considered debts and may not be absolved by the death of the obligated party. Outstanding support debt must be settled before any distribution to beneficiaries can occur.
Common-law partners may also establish a claim under the FLA based on contributions to the acquisition, preservation, or maintenance of property owned by the deceased.
Conclusion
In Ontario, the rights of surviving spouses vary depending on marital status and the presence or absence of a will. While married spouses benefit from statutory protections under the FLA and SLRA, common-law partners face greater challenges, particularly in intestate situations. Understanding these distinctions and seeking legal guidance when necessary empowers surviving spouses to assert their rights effectively, ensuring fair treatment and financial security in the probate process.
Our legal office offers a wide array of services aimed at ensuring the protection and optimization of your assets and wishes. From personalized consultations to meticulous preparation of wills and powers of attorney, our dedicated team is committed to providing comprehensive support tailored to your specific needs and circumstances.
PLEASE NOTE THAT THE CONTENT OF THIS BLOG IS MERELY FOR INFORMATION PURPOSES AND DOES NOT CONSTITUTE LEGAL ADVICE.
