Common-Law vs. Married: Inheritance Differences in Canada
Learn how Canadian inheritance laws treat married and common-law spouses differently, what protections each type of relationship has, and how to avoid unintended outcomes
One of the most misunderstood aspects of estate planning is the difference in legal rights between married and common-law spouses. While both types of partnerships are deeply meaningful, the law does not treat them equally when it comes to inheritance—especially if there is no Will.
Understanding these differences helps you build a plan that truly protects your partner, regardless of marital status.
How Inheritance Works for Married Spouses
Across Canada, married spouses generally have strong legal protections under both intestacy and family law. If one spouse dies without a Will, the surviving spouse is typically entitled to a share of the estate—often a preferential amount plus a portion of the remainder.
| With a Will | Without a Will |
|---|---|
| Can be named as primary beneficiary | Surviving spouse receives preferential share of the estate (amount varies by province) |
| Can receive personal and real property | Gets a portion based on family structure (children, blended families, etc.) |
| Has legal right to challenge unfair treatment | May apply for equalization or dependants' relief |
Tip: Even if you are married, it is important to have a Will. The automatic inheritance rules may not reflect your wishes—especially in blended families or high-value estates.
How Inheritance Works for Common-Law Spouses
Unlike married spouses, common-law partners are not automatically entitled to a share of the estate if there is no Will. The legal recognition of common-law relationships varies by province, and in many cases, the surviving partner must rely on court applications or written agreements to inherit.
| With a Will | Without a Will |
|---|---|
| Can be fully protected if named | Not entitled to inherit automatically under intestacy laws (in most provinces) |
| May receive specific gifts or the whole estate | Must apply to court for support or recognition |
| Can be challenged by legal heirs | May face disputes from family members |
Important: In provinces like Ontario, common-law partners have no automatic inheritance rights unless specifically named in a Will or supported by a cohabitation agreement or court order.
What This Means for Your Estate Plan
The legal system protects marriage. Common-law relationships need protection through planning. If you are in a common-law relationship, your partner may:
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Not be entitled to your home, even if you live together
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Be excluded from your estate entirely without a Will
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Have to apply to court for support, which takes time and money
Even for married couples, relying solely on default laws can cause delays or conflict—especially with stepchildren, former spouses, or jointly owned property.
How Optimize Helps You Protect Your Partner
At Optimize, we help you create a Will that reflects your life and your relationships. We work with both married and common-law couples to ensure that your partner is protected, your intentions are clear, and your assets flow as you intend.
We help you:
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Navigate legal differences across provinces
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Name your spouse clearly and consistently in all documents
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Structure assets for clarity, tax efficiency, and legal protection
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Update your plan if your relationship status changes
We bring certainty to the parts of life where the law is not always clear.
Why Naming Your Partner in a Will Is Essential
Love is not measured by legal status. But the law still matters. If you want your partner—married or not—to inherit your property, care for your children, or stay in the family home, you must plan for it in writing.
Do not assume the law will step in. It often won’t.
Protect your partner. Write it down. And make sure your Will speaks for your relationship—no matter what your marital status says.