What is Spousal Inheritance Law in Ontario?
When legal partner relationships are established, and a party passes away, their assets get allocated after their death is ruled under Spousal Inheritance Law. Let’s face it, this isn’t exactly a fun topic to face, but it is important, particularly when you are considering what kind of legal relationship status you want to enter.
Couples want to protect their spouses as much as they want to protect any other inheriting parties.
In Ontario, several different kinds of legal partner relationships are considered spouses. Beyond a traditional marriage, there is a second marriage relationship, common law partnership, and the relationship of a separated or divorced couple. Each of these has different legal standings and different rights.
Spousal Inheritance Law for Marriages
Marriages are governed under the Family Law Act. In Ontario, a married couple has defined rights of inheritance and property. However, when the marriage contract is drawn up, there can be clauses that specify what happens should either party pass away during the relationship. This is common when one party enters the relationship with significantly more assets than the other.
Suppose a spouse died without a marriage contract, a will (intestate), and no surviving children. In that case, the surviving spouse will be entitled to the entirety of their deceased partner’s estate by default. This is one of the many benefits of a legal marriage.
When there is no will, and there are surviving children, and a surviving spouse, the division of the estate becomes a little more complicated. In this circumstance, the spouse has the option to elect how they want the estate to be divided. In general, they can choose one of the following options:
- They can ask for what they would have been entitled to if they filed for divorce during their spouse’s life.
- They can choose to have the estate divided with preferential treatment. Preferential treatment means that the spouse will be entitled to their preferential share, which is currently $350,000 before the remaining assets are divided between the heirs in Ontario.
Spousal Inheritance Law for Common Law
A relationship that falls under common law does not have the same entitlements as marriage. When one spouse dies, they do not automatically inherit their partner’s property.
If you are in a common law relationship, it is essential that you have an up-to-date will. This becomes even more important if you have shared assets such as a family home. While you may look at your home as a shared asset with the right of survivorship, Ontario law does not allow this unless the title is held as joint tenants. Joint tenant ownership includes the right of survivorship, no matter the relationship status of the owners.
However, if the property is not owned as joint tenants or other property involved, then a common law surviving spouse will likely need to sue their spouse’s estate, which can be both costly and emotionally draining.
This is why we always recommend that common law couples have a professionally drawn, up-to-date will. Unfortunately, death is inevitable, and when it occurs, you want to make sure that your loved one’s way of life is protected.
Contact Levy Zavet today.
For more information about inheritance or putting together a will, contact Levy Zavet today. We will help you protect yourself and your loved ones.
