The rights of common law and married spouses in Ontario differ in some significant ways with respect to a deceased spouse’s property.
Upon the death of an intestate (died without a will) testator, the surviving married spouse receives a preferential share, which is the first $350,000 out of a deceased’s Estate, plus a proportion of the remaining Estate, depending on the number of children. On the other hand, a common-law spouse in Ontario is not entitled to a share of a partner’s Estate on an intestacy.
If the surviving married spouse’s entitlement is still not sufficient to provide adequate support for the spouse, the surviving spouse may additionally apply for dependant’s relief from the Estate.
A common law spouse’s remedies are limited – under the Succession Law Reform Act, an application for dependant’s relief, where it can be shown the surviving common law spouse was dependant on the deceased; at common law – a constructive trust claim, or an unjust enrichment claim, or another contract claim which may be enforced by the common law spouse against the deceased’s Estate.