For many Canadians, common law relationships are the foundation of family life. Couples build homes, raise children, and plan futures together without legally marrying. But when it comes to property division, inheritance, and financial planning, common law couples often face surprises. The law treats common law partners differently from married spouses in many Canadian provinces, and those differences can have serious consequences if one partner becomes ill, loses capacity, or passes away.
Understanding common law agreements and estate planning is essential to protect yourself, your partner, and your family.
What You Need To Know About Common Law Relationships
Defining Common-Law Status
Common law status in Canada is generally based on the length of time two people have lived together in a marriage-like relationship. The definition varies by province and by context. For example:
- For federal tax purposes, partners are considered common law if they have lived together for at least 12 months or share a child by birth or adoption.
- For provincial family law, common law status might apply after one, two, or three years of cohabitation depending on where you live.
Because there is no single definition, it is important to confirm how common law status is applied in your province for family law, tax, and estate planning purposes. Check out our article on the different provincial timelines for when you become common-law here.
Differences Between Marriage and Common Law
One of the most common misconceptions is that common law relationships are the same as marriage after a certain number of years. In reality, there are significant differences.
For married spouses, family law provides automatic rights to property division, inheritance, and spousal support. Common law partners do not always receive these protections. For example:
- In Ontario, common law partners have no automatic right to inherit from each other’s estates.
- In British Columbia, common law spouses (known as “spouses” after two years of living together) have rights to property division, but may not inherit their partner’s entire estate if they pass away without a will.
These differences highlight why common law couples need to plan proactively.
When Common Law Rights Apply
Common law rights generally apply once a couple meets the provincial definition of spouse or partner. These rights may include:
- Eligibility to claim spousal support
- Entitlement to share in family property in some provinces
- Recognition for income tax purposes
But these rights do not extend to automatic inheritance or medical decision-making. Without a will, a power of attorney, or a cohabitation agreement, a surviving partner may have limited legal standing.
Legal Agreements for Common-Law Couples
Relationship agreements are one of the best ways to reduce uncertainty for common law partners.
Cohabitation Agreements
What is a common law agreement? In brief, it’s the same thing as a cohabitation agreement. This is the most common legal tool for clarifying financial expectations and commitments for common law couples. Cohabitation agreements are contracts that set out each partner’s rights and responsibilities during the relationship and if it ends.
The purpose of a cohabitation agreement is to provide clarity on financial matters, property division, and support obligations. In the event of a separation, these agreements can prevent conflict, reduce legal costs, and give partners control of how they want to divide their lives instead of leaving decisions to the courts.
What should a cohabitation agreement include? Typically:
- How property will be owned and divided
- How debts will be managed
- Whether one partner will pay support if the relationship ends
- Rights and responsibilities around the shared home
For couples who later marry, a cohabitation agreement can be converted into a marriage contract as long as you have included a clause indicating that your agreement should continue to apply in the event you marry.
If you are wondering how to get a cohabitation agreement, you can work with a lawyer in your province or use a digital platform like Jointly to create a customized agreement that meets legal requirements at a fraction of the cost of traditional legal services.
Joint Tenancy vs. Tenancy-in-Common
Owning property together is a major consideration for common law partners. The two main forms of joint ownership are joint tenancy and tenancy in common.
- Joint tenancy means both partners own the property equally, and if one partner dies, the other automatically inherits the full property through the right of survivorship.
- Tenancy in common allows each partner to own a specific share. Their share can be left to someone who isn’t their partner (for example, children from a previous relationship) in their will.
The choice between joint tenancy vs tenancy in common has long-term implications. Check out our full article on this subject here. For estate planning in Canada, many couples choose joint tenancy for simplicity, but tenancy in common may be better if partners want to leave their share to children from a previous relationship.
Financial Planning and Support Agreements
Common law couples can also use agreements to outline how finances will be managed during the relationship. This might include sharing household expenses, contributing to savings, or protecting one partner’s business. In some cases, partners choose to set out support obligations in advance, giving them more certainty if they separate. This is especially important where one partner makes career sacrifices to support the other partner’s career, or steps back from the work force to care for children or aging parents.
Estate Planning Essentials for Common-Law Partners
Estate planning in Canada is critical for common law partners. Without proper documents, a surviving partner may be left without inheritance, decision-making authority, or financial security.
Why Estate Planning is Important For Common-Law Partners
Unlike married spouses, common law partners are not always guaranteed a share of each other’s estates. If a partner dies without a will, the surviving partner may receive nothing. Estate planning ensures that your wishes are respected and your partner is protected.
Will and Inheritance Rights For Common-Law Partners
In most provinces, common law partners do not have automatic inheritance rights. That means a will is essential. Through a will, you can:
- Leave property or assets directly to your partner
- Appoint your partner as executor
- Make arrangements for children or dependents
Without a will, your estate will be distributed according to provincial intestacy laws, which may exclude your partner entirely.
Powers of Attorney and Health Care Directives
Estate planning is not only about what happens after death. It also covers what happens if you lose capacity.
- Power of attorney for property lets your partner manage your finances if you cannot.
- Power of attorney for personal care or a health care directive allows your partner to make medical decisions on your behalf.
Without these documents, your partner may not have legal authority, even if you have lived together for many years.
Combining Common Law Agreements and Estate Planning
The best protection comes from combining a cohabitation agreement with a solid estate plan. Together, they provide:
- Clarity about property division and financial obligations during life
- Certainty about inheritance and decision-making if one partner passes away
- A stronger legal foundation if disputes arise
Provincial Differences in Common Law and Estate Planning (Canada)
The rules for common law relationships and estate planning vary significantly across Canada. For example:
- Ontario: No automatic inheritance rights for common law partners. A will is essential.
- British Columbia: Common law spouses (after two years of living together) may have rights to property division but do not automatically inherit their partner’s full estate without a will.
- Alberta: Adult interdependent partners may inherit under intestacy laws, but definitions are specific and need to be met. This can be particularly complicated if there is both an adult interdependent partner and a spouse.
- Quebec: Common law partners (de facto spouses) have no inheritance rights under provincial law.
Because of these differences, common law estate planning should always take your province into account.
FAQs
Do common law partners automatically inherit in Canada?
No. In most provinces, common law partners do not automatically inherit. A will is needed to ensure your partner receives your assets.
What happens if my partner dies without a will?
If your common law partner dies without a will, provincial intestacy rules apply. These rules often leave the surviving partner with nothing, unless other provisions were made.
Do common law partners have the same rights as married couples in Canada?
No. The difference between common law marriage and marriage is significant in Canadian law. Married couples receive automatic inheritance and property rights, while common law partners must create agreements and estate plans to protect themselves.
Can a common law partner contest a will in Canada?
Yes, a common law partner may be able to contest a will if they were financially dependent on the deceased. However, the process can be lengthy and uncertain.
What is a common law partner entitled to in Canada?
Entitlements vary by province. A common law partner may have rights to spousal support or property division but generally does not have automatic inheritance rights. Wills, cohabitation agreements, and estate planning documents are necessary for protection.
Bottom line: Common law relationships are increasingly common in Canada, but the law does not automatically provide the same protections as marriage. By combining a cohabitation agreement with estate planning, partners can secure their futures, protect each other, and avoid painful disputes.
In as little as 20 minutes, you can create your cohabitation agreement with Jointly. Get started for free, and secure your future 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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