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We're not married. What happens to my partner's property if they die?

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We're not married. What happens to my partner's property if they die?

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Reviewed: 
September, 2015
Answer

If you were living in a common-law relationship when your partner died, then what happens to their property depends on whether they had a valid will.

A will is a written legal document that says who gets a person's property after that person dies.

To be valid, your partner must have followed certain rules when making their will. For example, the rules say that a will must usually be signed by the person making it and by two witnesses.

If your partner had a valid will, you get what your partner left you in that will.

If your partner didn't have a valid will or didn't make a will, then "intestacy rules" say who inherits property. Common-law partners don't get anything under these rules. Your partner's property goes to their children or other relatives if they didn't have children.

You might also be able to make a claim to your partner’s property in some situations. For example, by making an unjust enrichment claim or a resulting trust claim. See Steps 3 and 4 for more information. These types of claims can be very hard to prove. You can talk to a lawyer who can tell you whether you have a good claim, and help you through the court process

Joint property

If you and your partner owned any money or property jointly, you usually become the sole owner of it. For example, you usually get all the money in a joint bank account.

If you and your partner owned real estate together, what happens depends on how you own the property. You become the sole owner of any real estate that the two of you held in "joint tenancy". If the two of you held real estate as "tenants in common" then your partner's share of the property goes to their estate. Their estate is then divided according to their will or intestacy rules.

If you are listed as a "beneficiary" in an insurance policy or on investment papers, you also get that money.

You might also be able to make a claim to your partner’s property in some situations. For example, by making an unjust enrichment claim or a resulting trust claim. See Steps 4 and 5 for more information. These types of claims can be very hard to prove. You can talk to a lawyer who can tell you whether you have a good claim, and help you through the court process.

Living in your home

If your partner owned your home and you aren't on the title, you can be locked out of the home after your partner dies.

You don't have the same right to live in the home after your partner's death as you would if you were married.

Other claims or benefits

You might also be able to apply for other claims or benefits. For example, you might be able to apply for support payments. See Step 5 for more information.

1. Check if your partner had a will

To find a will, you can check:

  • your partner's personal paperwork
  • your partner's safety deposit box at a bank or similar business
  • with your partner's lawyer, if they had one

In Ontario, people sometimes leave their will with the local Court Registrar for safekeeping. You can find the contact information for Ontario courthouses.

Reviewed: 
October, 2016
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2. Check if the will is valid, if needed

A court may need to decide if your partner's will is valid. You might need the court to do this so that your partner's property can be dealt with as they said in their will. This is called getting "probate", "letters probate", or a "certificate of appointment of estate trustee with a will".

Some of the reasons you may need to probate your partner's will are:

  • if someone challenges the validity of the will
  • because banks and other organizations may need to know the will is valid before they deal with your partner's bank accounts and other property

The court looks at several things before deciding whether a will is valid or not. For example, it may decide a will isn't valid if:

  • it didn't follow certain rules. In general, the rules say that a will must be signed by the person making it and by two witnesses.
  • the person who made it didn't understand what they were doing. For example, because they had severe dementia at the time they made the will.

The date of the will can also be very important if your partner was married or divorced before your relationship began. For example, the whole will may not be valid if it was made before your partner got married. Or, parts of the will may not be valid if your partner got divorced after they made the will.

Not every will needs to be probated. For example, if the person doesn't have much property or if all of their property can be dealt with without getting probate.

Property that is jointly held can usually be dealt with without getting probate. An insurance policy is also usually paid to the person listed as the "beneficiary" without needing probate.

A common reason not to ask the court for probate is to avoid the tax that the government charges. The amount of the tax depends on the value of the property.

You can talk to a lawyer who can explain if you need to apply for probate.

If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer, you may be able to find legal help in other places.

Reviewed: 
October, 2016
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3. Think about whether to make an unjust enrichment claim

Since a common-law partner usually doesn't get a share of their partner’s property unless it was given to them in a valid will, you have to prove why you should be given a share.

A claim based on unjust enrichment means that it would be unfair for your partner not to share their property. This can be very hard to prove.

To make this claim, you have to show that:

  • you contributed to the property,
  • your partner benefited from your contribution, and
  • there is no reason for your partner to keep this benefit.

You may have made a direct contribution to the property. Some examples include:

  • you paid for a new roof on a house owned by your partner
  • you built a deck on a house owned by your partner
  • you managed all the bookkeeping for your partner's business
  • you cared for the children and home which allowed your partner to spend time and money growing their business
  • you paid all the household bills and your partner put all their money into savings

You may have made an indirect contribution to the property. Some examples include:

  • you cared for the children and home which allowed your partner to spend time and money growing their business
  • you paid all the household bills and your partner put all their money into savings

If you can show an unjust enrichment claim, you don’t always get half of the value of the property. The law considers what your fair share would be.

Usually this can be paid by money. Sometimes if money is not enough, you can be given a direct interest in the property you contributed to. For example, the court can order that you own one-third of the house and your partner owns the other two-thirds.

Reviewed: 
February, 2017
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4. Think about whether to make a resulting trust claim

A claim based on a resulting trust means that the property is in your partner’s name but is really your property. This might be found where:

  • you gave property to your partner that they didn't pay for, or
  • property was purchased in only your partner's name but you contributed to buying the property

For example, you transferred half of your home to your partner but they did not pay you for it. Or you and your partner both contributed to the down payment of a house but it was put in only your partner's name.

To find a resulting trust over a piece of property, the court must find that you meant for your partner to hold the property "in trust" for you, and not that you meant to make a gift to your partner. This can be very hard to prove.

You can talk to a lawyer who can tell you whether you have a good claim for unjust enrichment or a resulting trust, and help you through the court process.

If you can't afford to hire a lawyer for your whole case, some lawyers will provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer, you may be able to find legal help in other places.

Legal Aid doesn't usually help with property issues. But it may cover the cost of up to 10 hours with a family lawyer to help negotiate and draft a separation agreement that includes property issues.

Reviewed: 
February, 2017
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5. Apply for other claims or benefits

Canada Pension Plan benefits

The Canada Pension Plan (CPP) is a type of pension that is paid into by most workers and employers. If you were living together with your partner for at least one year when your partner died, you may qualify for different types of CPP benefits after your partner dies:

  • You can apply for a CPP survivor's pension.
  • You can apply for a death benefit. This is a one-time payment to help pay funeral and other expenses. It goes to the person or people who pay those expenses. This might be the person who administers the estate, the surviving partner, or next of kin.
  • You can apply for an Allowance for the Survivor. This is a monthly payment to low income people who are aged 60 to 64. There are some other rules about who can get this benefit.
  • You can apply for international benefits if you or your married partner lived outside of Canada at any point in time. The rules about who can get this benefit depend on which country you or your partner lived in and how long you lived there.

Support

You can also make a claim in court against your partner's estate for support if your partner didn't leave you or your children with proper financial support. This type of claim is made against your partner's estate. It is called a "dependant’s support claim".

This is not the usual family law court application for spousal support. There are also time limits on when to apply.

You can talk to a lawyer with family law and estate law experience if you want to make this type of claim.

If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer, you may be able to find legal help in other places.

Other benefits

Your partner may have an employment benefits plan that offers life insurance or other accidental death benefits.

You may also be entitled to other payments depending on how your partner died.

You can apply for compensation if your partner died as a result of someone else's criminal act. For example, if your partner died from a car accident caused by a drunk driver. To find out more, visit the Criminal Injuries Compensation Board (CICB) website or call the CICB at 1-800-372-7463 or 416-326-2900 in the Toronto area.

You can apply for benefits if your partner was killed on the job. To find out more, visit the Workplace Safety and Insurance Board (WSIB) website or call the WSIB at 1-800-387-0750 or 416-344-1000 in the Toronto area.

Reviewed: 
February, 2017

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