When you’re living with a partner but not married, the law doesn’t automatically protect your relationship in the same way it protects married couples. This is especially true when it comes to estate planning – the arrangements you make for your property, finances, and wishes after death.
That’s why cohabitation agreements and estate planning go hand-in-hand. Together, they give unmarried couples clarity, security, and peace of mind for the future.
What Is a Cohabitation Agreement?
A cohabitation agreement is a legal contract between two people who live together in a marriage-like relationship, whether or not they ever plan to marry.
It outlines how property, debts, financial responsibilities, and support obligations will be handled during the relationship, and if the relationship ends.
What Is Included in a Cohabitation Agreement?
Most cohabitation agreements cover:
- Property ownership – who owns what, and how new property will be treated.
- Shared finances – how expenses, bills, and joint accounts will be managed.
- Debts – who is responsible for existing or future debts.
- Spousal support – whether support will be paid if the relationship ends.
- Estate planning considerations – what happens to property or inheritance if one partner dies.
- Dispute resolution – how conflicts will be handled (for example, mediation before court).
Purpose of a Cohabitation Agreement
The purpose of a cohabitation agreement is to:
- Protect each partner’s interests.
- Reduce uncertainty and conflict.
- Provide financial clarity.
- Give common law partners legal rights similar to married couples in some areas.
- Ensure each partner’s wishes are respected in separation, illness, or death.
What Is Estate Planning?
Estate planning is the process of organizing your affairs so your property, assets, and responsibilities are managed according to your wishes if you pass away or become incapacitated.
It goes beyond just writing a will – it can also include trusts, powers of attorney, and beneficiary designations.
Purpose of Estate Planning
The purpose of estate planning is to:
- Make sure your assets are distributed the way you want.
- Protect loved ones financially.
- Minimize conflict among family members.
- Reduce taxes and administrative costs.
- Ensure decisions about health and finances are made by the person you trust most if you can’t make them yourself.
Why Cohabitation Agreements Matter in Estate Planning
For unmarried couples, estate planning is especially important. Without the right legal documents, your partner may not have any rights to your estate – even if you’ve lived together for decades.
Here’s why cohabitation agreements are critical to estate planning:
- Property rights: In some provinces, common law partners don’t have automatic rights to share property after death. A cohabitation agreement can spell out ownership and inheritance rights.
- Spousal support obligations: Agreements can address whether a surviving partner is entitled to support from the deceased’s estate.
- Clarity for blended families: If you or your partner have children from prior relationships, a cohabitation agreement can clarify how property is divided.
- Reducing legal disputes: Courts are more likely to follow clear written agreements than rely on assumptions about your relationship.
In short: a cohabitation agreement is a foundation. Estate planning builds on it to make sure your wishes are enforceable.
Key Considerations When Drafting a Cohabitation Agreement
If you’re thinking about a cohabitation agreement, keep these estate planning-related issues in mind:
- Wills still matter – A cohabitation agreement doesn’t replace a will. You still need a will to determine how your estate is distributed.
- Beneficiary designations – RRSPs, pensions, and insurance policies often pass directly to the named beneficiary, not according to your will. Make sure these designations match your agreement.
- Children and dependents – If you have children, your agreement should coordinate with your will or trust to ensure they’re provided for.
- Provincial differences – Laws vary across Canada. For example:
- In Ontario, common law partners can claim spousal support but not property rights unless a cohabitation agreement says otherwise.
- In B.C., common law partners who have lived together 2+ years are treated like married spouses for property division.
- In Ontario, common law partners can claim spousal support but not property rights unless a cohabitation agreement says otherwise.
- Independent legal advice – Courts are more likely to enforce agreements if both partners had their own lawyers.
Integrating Cohabitation Agreements with Wills and Trusts
To fully protect your partner and loved ones, your cohabitation agreement should work together with your will, trust, and other estate planning documents.
Here’s how:
- Cohabitation Agreement + Will
Your agreement sets the foundation for property division and responsibilities, while your will specifies who inherits what after your death. - Cohabitation Agreement + Trust
A trust can hold property for a surviving partner or children while respecting the terms of your agreement. - Cohabitation Agreement + Powers of Attorney
If one partner becomes incapacitated, powers of attorney ensure the other can make financial and health decisions – something a cohabitation agreement alone doesn’t cover.
Together, these tools provide comprehensive protection for both partners.
FAQs
Do unmarried couples need a cohabitation agreement?
Yes. Without one, unmarried partners may have few rights if the relationship ends or if one partner passes away. A cohabitation agreement protects both people.
Can a cohabitation agreement affect inheritance?
Yes. An agreement can clarify property rights and outline what each partner is entitled to if one dies. But it should always be paired with a will to avoid gaps.
Can I update my cohabitation agreement?
Absolutely. You can revise or replace it at any time if both partners agree. Updating is important if your financial situation changes, you have children, or you buy property.
What happens if I die without a will as an unmarried partner?
If you die without a will, provincial intestacy laws apply. In most provinces, this means your property goes to your closest blood relatives – not your common law partner. Without a will or cohabitation agreement, your partner may be left with nothing.
Final Thoughts
For common law couples, estate planning isn’t optional – it’s essential. Cohabitation agreements and estate planning documents like wills and trusts work best together, ensuring your wishes are respected and your partner is protected.
At Jointly, we help couples take control of their futures with clear, affordable cohabitation agreements. When combined with proper estate planning, these agreements give you peace of mind that your relationship – and your loved ones – are secure.
👉 Ready to start your cohabitation agreement? Visit getjointly.ca today.
I founded Jointly because I want to empower more Canadians with the knowledge and tools to create relationship agreements that work for them, at a price they can afford. My big dream? That reaching more Canadians with Jointly ultimately keeps more families out of the court system when relationships breakdown, which can be slow, expensive and traumatic. (I may or may not have personal experience with this 😅)
When I'm not lawyering, I'm most likely hiking with my dogs, kayaking the coastal waters around North Vancouver, or hitting the sauna and cold plunge.
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