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Regardless of the number of years a common law couple has been together, the common law partners are not treated the same as those who are legally married and therefore do not have the same property rights as their married counterparts. In the province of Ontario, if a common law partner passes without a will, the surviving partner may be left without any part of the estate. Can anything be done to help the surviving common law partner ? Here’s what you need to know. 

What options does the surviving partner have?

If there isn’t a will in place, the surviving partner  has two ways that they can file a claim against the estate: by filing a dependency claim, or by filing a claim for unjust enrichment. 

Dependency Claim 

In cases where the surviving partner was dependent on the deceased partner, and was not adequately provided for in the will then the surviving partner can file a dependency claim. The partner will have to file an application against the estate in court. 

The outcome of this is awarded by a judge, and it can be in the form of a lump sum, a periodic payment, or the transfer of ownership of specific assets. The downside to this type of claim is that it has to be filed within six months of the death of their partner.  

Something to keep in mind for this type of claim is that while it may help a surviving partner to gain adequate support to maintain their lifestyle, it can be a very long and expensive process – both emotionally and financially. So while your surviving partner is grieving this loss, they will also be going through this legal battle, potentially against their family members. Having a will in place can help to avoid this. 

Unjust Enrichment Claim 

Unjust enrichment happens when one person experiences financial gain at the expense of the another, like when one partner takes care of the home while the other is at work (without being paid for it). In order for this claim to hold, there has to be some type of financial gain to the deceased at the expense of the surviving partner (without having a legal reason for that gain). 

This type of claim will usually be rectified in two ways: a constructive trust or a quantum meruit award. 

A constructive trust will award property to the surviving partner that is equal to the contribution of the surviving partner. Whereas the quantum meruit award will be a monetary amount given to the surviving partner that would be based on future compensation from the spouse who has died. 

In most cases, the quantum meruit award is preferred over a constructive trust if the funds are available in the trust. This can also be a very long process and expensive too. 

It’s important to have a will in place so that your spouse is going to be taken care of and doesn’t have to spend years, and lots of money, in legal battles. 

Contact Minhas Lawyers

If you are a common law partner looking to protect your partner by drafting a will or if you have recently lost your common law partner and require legal assistance, we are here to help. Contact us today to speak to an estate lawyer

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Minhas Lawyers Professional Corporation is a multi-practice law firm based in Mississauga. We advise and represent clients across various segments and practice areas.

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