Many people create estate plans to make sure that their loved ones are protected after they’re gone. They want to feel confident that they are financially secure and can avoid any complex legal processes, if the unexpected happens. For unmarried and common law couples, estate planning is especially important, because the process can be more complicated if the right protections aren’t put into place.
Common law and unmarried couples in Canada
The number of couples living common law in Canada has increased over the years and has become increasingly common among young Canadians.
However, many people don’t know how their living arrangement can affect other aspects of their life, such as how they need to file their taxes or the importance of doing comprehensive estate planning.
How long do you have to live together to be common law in Canada?
The criteria for common law varies based on whether it’s being evaluated at the federal or provincial level.
Federal rules for common law in Canada
At the federal level, there is a criteria for common law that’s used to determine how income taxes should be filed. For federal taxes, common law refers to couples who are living together in a conjugal relationship and meet at least one of the following conditions:
- The couple have been living together for at least 12 continuous months
- The couple are the parents of a child by birth or adoption
- The couple have custody of a child and the child is dependent on them for support
Provincial rules for common law in Canada
Since family law falls under provincial law, the criteria for common law in most other contexts, including estate law, varies by province and territory.
For example, a couple is considered common law in Ontario if they’ve lived together for three continuous years. However in B.C., the couple can be considered common law after only two continuous years of living together.
Note: in most provinces, couples can be considered common law more quickly if they have a child together by birth or adoption.
What is a common law partner entitled to in Canada?
Canadian estate law doesn’t treat all relationships equally, so if a couple isn’t legally married, they’re not protected in the same way as married couples are. This holds true for unmarried couples that have been together for years, or even decades. In this sense, estate planning for unmarried senior couples is just as essential as estate planning for unmarried couples from younger generations.
Common law varies by province, but in general, if a common law partner passes away with no will, their surviving partner may not receive anything.
So, it’s important to understand the steps you can take to protect an unmarried partner.
What common law or unmarried couples should consider when estate planning
When it comes to estate planning, there are a few things that unmarried couples should consider, and important documents that they should create. These include:
- Creating a will and designating their beneficiaries
- Creating a power of attorney
- Determining how their individual and joint assets will be divided
- Assigning guardianship for any children
We’ll explore each of these considerations below, and why they are important for unmarried couples.
Creating a will and naming beneficiaries
Creating a will is important for unmarried couples because the laws of intestacy are not the same for married and unmarried couples, even those who are in a common law relationship.
‘Intestacy’ refers to a situation where someone dies without a valid will in place, i.e. they die intestate. If your unmarried partner dies intestate, you may not be considered their next of kin and it would be up to the court to decide if you receive any of their estate. This is not the case for married couples, who have more protection in estate law.
The best way to make sure that an unmarried partner is protected after their partner’s death is to have them named as a beneficiary. With a valid will and the partner named as a beneficiary, the estate would be distributed according to the wishes of the deceased partner.
Naming insurance and investment account beneficiaries
It’s also important to name an unmarried partner as a beneficiary of any insurance policies and investment accounts that you have. This helps make sure that your surviving spouse or partner is financially secure if you pass away.
When you first open an investment account, like a tax-free savings account (TFSA) or a registered retirement savings plan (RRSP), you will typically be required to name a beneficiary of the account. It’s important to keep any financial affairs up-to-date as your relationship status changes.
Creating power of attorney documents
A power of attorney (POA) is a document that allows another person to make healthcare, financial, and legal decisions on another person’s behalf. It’s an important document, so choosing an attorney that you trust and who has good judgment is critical. Many people choose their spouse or partner for this role.
If your unmarried partner does not have a valid POA in place, you may not be designated as their representative by the court. The court will likely consider other people, like family members, in their review. This could be an issue if you and the person appointed as POA don’t agree or see eye-to-eye.
Some individuals, such as members of the 2SLGBTQIA+ community, face barriers in receiving adequate healthcare. For these individuals, it’s important that the person assigned as their health care proxy deeply understands their medical needs and their identity. For these reasons, it can be especially important to name an unmarried partner as a POA, if they are best suited for the role.
Determining how assets will be distributed
Many couples own some assets individually and some assets jointly. For example, many couples, married and unmarried, jointly own homes together.
When an asset is jointly owned between partners and one of them passes away, it typically passes to the surviving spouse or partner automatically. There are often tax benefits for jointly owned assets as well–if a home was owned by both partners it typically bypasses the estate of the deceased partner, so there would be no estate taxes paid on the property.
However, this doesn’t always hold true, so it’s important to understand the different types of joint ownership. For example, if you and your partner have owned property together as tenants in common, the property will not automatically be passed to you. In this situation, the portion of the home owned by your partner could be gifted to you in their will, but this wouldn’t happen automatically.
If assets are not jointly owned, for instance if only your partner owns the home, making sure that they have a valid will can help make sure that the home is distributed to you when they pass away, or according to their wishes.
In addition to having a will, some unmarried couples and common law partners choose to create cohabitation agreements.
Cohabitation agreements for unmarried partners
A cohabitation agreement is a legal document that couples can use to outline certain agreements related to their home. This can include things such as the payment of household expenses, what happens to a property in the event the couple separates, or the repayment of shared debts in the event of separation.
It’s valid for couples to have both a cohabitation agreement as well as a will that outlines how their home or property would be distributed if one of the partners were to pass away–the documents can work hand-in-hand.
Assigning guardianship for children
An important aspect of creating a will is assigning a guardian, or guardians, for your children. As a parent it can be difficult to think about estate planning, but making a will is one of the most important documents that new parents can have.
If one of the parents in an unmarried couple passes away, the other parent will typically get custody of any children. However, if the surviving partner is not a natural parent to the child, there can be some complexity, especially if the partner was not previously made a legal guardian.
This can be an extremely stressful situation, so it’s very important that the guardianship of any biological, adopted, or shared children is outlined in a will.
In general, what happens if you are not married and your partner dies?
If your unmarried partner passes away, you should first determine if they had a valid will in place. If they did, then their estate will be distributed according to their will.
If they did not have a valid will in place, you can file a claim against the estate. However, it will ultimately be up to a judge’s discretion to evaluate the unique facts of the case and determine how much (if any) of the estate you have a right to.
Having a will in place is an essential part of estate planning, especially for unmarried couples that don’t have the same protections as married couples in Canada. And in as little as 20 minutes, you too can create a will and power of attorney documents with Willful.