Common-Law With No Will?
Thirteen years ago, Wendy and Gord met at a curling bonspiel, fell in love and moved in together a year later. As a couple, they split the mortgage payment, shared a dog named Biscuit and a joint chequing account for groceries, and kept up a running argument about who had left the lights on. When friends asked why they’d never married, Gord liked to say they’d both already done that.
Gord died of a heart attack this past March. He was fifty-eight, and he’d never made a will. Neither had Wendy, although they’d talked about it over the years. Usually, the conversation took place right after someone they knew had died, but then life carried on.
Wendy assumed after living together for twelve years she’d be treated as Gord’s wife. So did friends and family. Then she sat down with a lawyer and learned that, where they lived, the law didn’t see her as Gord’s spouse at all. The house was in his name, and his estate would go to his brother and two sisters.
Common-law means different things to different laws
Wendy’s assumption is one most common-law couples share, and it isn’t hard to see why. The Canada Revenue Agency treats you as common-law partners once you’ve lived together in a conjugal relationship for 12 continuous months, or sooner if you have a child together. You file your taxes that way. Your benefits plan at work may list your partner. It’s easy to assume other areas of the law will view your relationship in the same way.
But tax law, family law and estate law each have their own definition, so you can qualify under one and not under another. Estate law is set by each province and territory, so the rules depend on where you live. Being common-law on your tax return doesn’t mean you’re treated as a spouse when it comes to your partner’s estate.
What happens when there’s no will
When someone dies without a will, a formula set out in the law of their province or territory decides who inherits. That formula almost always starts with a spouse. The question for common-law couples is whether the law where you live counts you as one.
In some parts of Canada, it does. A common-law partner is treated much like a married spouse once you’ve lived together for a set period, usually two or three years depending on where you live, and sometimes less if you have a child together. A few places also let couples register their relationship.
In other parts of the country, a common-law partner inherits nothing automatically, no matter how long you’ve been together. The surviving partner’s usual option is to apply to court for support from the estate as a dependant. That means hiring a lawyer, proving the relationship, proving you relied on your partner financially, and waiting while a judge decides what, if anything, you receive. In at least one province, a common-law partner can’t even make that claim.
Nineteen Years of Mortgage Payments, Not One Line on the Title
Carol and her partner, Rick, lived together for nineteen years in the house Rick bought before they met. Carol paid half the mortgage and for most of the renovations. When Rick died without a will, Carol learned the house was part of his estate and that the law where they lived didn’t recognize her as an heir. Rick’s adult daughter, who he hadn’t spoken to in more than a decade, inherited everything. Carol spent the next two years in court trying to recover part of what she’d put into that home. She got some of it back. Rick would almost certainly have wanted her to have all of it.
Quebec shows how much this is still changing. For years, de facto spouses there had no right to inherit without a will. Since June 30, 2025, couples who become parents of a child together on or after that date fall under a new parental union regime. If one of them dies without a will after they’ve lived together for at least a year, the survivor inherits a share. Couples whose children were born before that date can choose to join the parental union regime, but couples without a child together aren’t covered by it at all. Other jurisdictions have been reviewing and updating their estate laws too, so what was true a few years ago may not be true today.
Even where the law includes you
If you live somewhere that treats common-law partners as spouses, it’s tempting to think all is fine. But being included in the formula still isn’t the same as your partner getting what you intended.
You may have to prove you qualify. The surviving partner has to show the relationship existed and lasted long enough. If you moved in together gradually, or lived apart for a stretch, other family members can dispute it, and sometimes they do.
The formula decides the split. If your partner had children, from your relationship or an earlier one, the estate is often divided between you and them by a fixed rule, whatever your partner would have chosen.
Someone still has to be appointed. Without a will, there’s no Executor. Someone has to apply to court to be appointed administrator, which usually takes longer and costs more than if a will had named the person.
And if you have young children together and something happens to both of you, a will is where you name who you’d want raising them. Without one, that decision isn’t yours.
If you’ve realized you don’t have a will, or the one you have was written before your partner came along, The Will Blueprint™ helps you work through the decisions before your appointment. It covers your family situation, who to name as Executor, your assets and beneficiary designations, and how you’d want your estate divided, with guidance for your province or territory. You’ll go into your appointment clear on what you want for your estate and what to ask.
Put it in writing
The surest and easiest way to protect your partner is a will. It names your partner as a beneficiary, it can name them as your Executor, and it lets you decide how your estate is shared between your partner and any children. You and your partner each need to make a will. If you already have a will, check when you wrote it. A will made before you met your partner may still leave everything to a parent, a sibling or a former spouse. Moving in with someone doesn’t change an existing will.
The Will Sunita Forgot She Had
Sunita made a will in her twenties, when she bought her first townhouse. She left everything to her sister and named her as Executor. Eight years ago, her partner, Rob, moved in, and they made the townhouse their home. When Sunita died this spring, the will was still in a drawer, unchanged. Her sister inherited the townhouse and Sunita’s savings. Rob, who’d been with her every day of those eight years, had to find somewhere else to live because the will had never been updated to include him.
Some assets can pass outside a will. Registered plans like RRSPs, RRIFs and TFSAs, and life insurance, can often name a beneficiary directly, and property owned jointly can pass to the surviving owner in many parts of Canada. These rules vary, and because Quebec operates on civil law, they work differently there, so check what applies to you and look again at designations you made years ago. They have their own pitfalls, which I covered in The Flip Side of Beneficiary Designations.
A lawyer can also talk to you about a cohabitation agreement, which sets out how the two of you have agreed to handle your property.
Don’t stop at the will
Having a will and naming an Executor are important. But a will only comes into play after you die. While you’re alive, it’s more likely that your health, or your ability to manage your own affairs, will become the issue, whether through a stroke, a fall or dementia.
Your partner has no automatic authority to manage your bank accounts or sell your property if you can’t, and neither would a married spouse for that matter. That takes a power of attorney for finances, which goes by different names across Canada. If you can’t make your own health care decisions, the law has a list of who can step in, and that list varies by province and territory. Whether your partner is on it, and how long you need to have lived together for that to apply, depends on where you live. A personal directive, or whatever it’s called in your province or territory, lets you name the person you want speaking for you. I’ve written more about this in Incapacity Planning: What Happens If You Can’t Decide.
Because the rules are different across Canada, the best next step is a conversation with a lawyer where you live, or a notary in Quebec.
One conversation, one appointment
Gord and Wendy weren’t careless. They paid their bills, looked after each other and built a life together. They believed something about the law that wasn’t true where they lived, and nobody knew to correct them while there was still time to fix it.
If you and your partner have been meaning to get to it, this is your nudge. It’s one conversation and one appointment, and it means the person you’ve built your life with won’t have to prove it to a judge.
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Disclaimer: This content is for general information only and is not legal, financial, medical, or tax advice.
