1. What is a Common Law Spouse in Ontario?

By Gord Mohan

In Ontario, you are considered common law if you:

• Have lived together in a conjugal relationship for at least three years, or

• Have lived together for less time but share a child (by birth or adoption).

While common law couples share some legal rights with married couples, there are significant differences, particularly when it comes to property division, inheritance, and estate planning.

2. Property Rights: Different from Married Couples

Unlike legally married spouses, common law partners are not automatically entitled to property division upon separation. This means:

• There is no automatic 50/50 split of assets acquired during the relationship.

• A common law partner must prove financial contributions or a trust claim to seek a share of property owned by the other partner.

3. Tax Benefits and Property Transfers

Common law partners can file taxes as a couple, which may provide tax benefits. Furthermore, under the Land Transfer Tax Act, they may also qualify to receive the same exemptions as married spouses when transferring property between them. 

4. What Happens if a Common Law Spouse Dies Without a Will?

This is one of the most critical differences between common law and legally married spouses. If a married spouse dies without a will, Ontario’s intestacy laws automatically provide inheritance rights to the surviving spouse. However, common law partners are NOT included in these laws.

This means that if one partner passes away without a will:

• The surviving partner may have no legal claim to their shared home or assets.

• The deceased’s estate could instead go to biological relatives, leaving the surviving partner financially vulnerable.

5. Protect Yourself with Proper Planning

To avoid these risks, common law couples must take proactive steps:

✅ Create a will that clearly outlines how assets should be distributed.

✅ Consider a cohabitation agreement to clarify financial responsibilities.

✅ Consult a lawyer to ensure both partners are protected under estate and property laws.