In Canada, an inheritance is when you receive something such as assets, property, or money because you are a beneficiary of someone else’s estate.
Inheritance happens with or without a will. How inheritance is distributed will differ depending on whether or not the deceased died with or without a will.
- Without a will, inheritance is based on the succession laws of your province or territory, which prioritize legal spouses, children, and other family members.
- With a will, you can choose anyone you want to inherit your assets, which could include common law partners, friends, family members, or charities.
This article will explore common law partners and inheritance rights, estate planning for common law couples, and how your will can affect how your assets are distributed.
Key takeaways
- Common law partners can only inherit intestate estates (estates without a will) in BC, Manitoba, Saskatchewan, and Northwest Territories. For all other regions, the common law partner has no inheritance rights without a will.
- Regional criteria to be common laws depend on how long you’ve lived together, whether you have any children together, or whether partnership registration exists in your province or territory
- You can protect your common law partner’s legal claim of inheritance by naming them as a beneficiary in your will
- If you receive an inheritance, you are not obligated to share it with your partner
Understanding common law relationships and inheritance
Common law relationships are different from marriages. While marriages are lawful unions formalized by a legal process and a marriage certificate, common law relationships often occur without documentation.
Common law relationships are generally defined either by a certain amount of time a couple has spent living together or the presence of a partnership agreement or registration.
Legally registering your relationship is possible in only a few provinces. You can create an Adult Interdependent Partner agreement if you live in Alberta, or register your common law relationship with the Vital Statistics Agency if you live in Manitoba.
What happens if you live with someone and they pass away?
If you are married and living together with your spouse, you are likely to inherit their estate should they pass away without a will. The likelihood that you inherit their entire estate depends on your family structure, such as if you had children together and where you live in Canada.
If you are living with your common law partner and they pass away without a will, you may not inherit anything.
If you are living with someone, like a roommate, whom you have no conjugal or familial relationship with, and they pass away without a will, you will likely not inherit anything of their estate either. Their estate would be distributed according to their will or, if they had no will, the succession laws of your region.
Is my common law partner entitled to my inheritance?
A common law partner can only receive an inheritance from their partner’s estate if:
- Their partner died intestate while living in BC, Manitoba, Saskatchewan, or the Northwest Territories, or;
- Their partner named them as a beneficiary in their will
Without a will, your estate will be distributed to your next of kin based on the succession laws of your region. Your partner will not inherit if they do not meet the requirements to be considered your legal spouse at the time of your passing (meaning you are not married, you have not met the minimum time requirement to be considered common law partners, or your regional law does not recognize common law partners as spouses at all).
With a will, you can easily allow your partner to receive all of your estate or just a part of it. You can choose how to distribute your assets any way you choose in your will by naming beneficiaries and designating who gets what.
Protect your loved ones by making a will today →
What rights does a common law partner have when their partner dies?
There are no specific common law inheritance laws. Rather, succession rights depend on legal definitions of the term “spouse”.
In every region of Canada except for British Columbia, Manitoba, Saskatchewan, and Northwest Territories, “spouse” is defined as someone you are married to. Without a marriage certificate proving you are married, a common law partner outside of those regions has no inheritance rights if their partner passes away without a will.
If I receive an inheritance, is my partner entitled to it too?
Any inheritance or assets you receive before, during, or after a relationship is yours and yours alone.
However, if you choose to use that inheritance towards jointly owned assets, such as a jointly owned property or business, then it becomes part of that shared asset. Exceptions for this would include tenants in common agreements or cohabitation agreements, where you have clearly specified how asset division in your common law relationship works.
Cohabitation agreements are documents for financial planning for common law couples. Making sure the inheritance you received isn’t in any shared assets and is listed as solely yours in any cohabitation agreements helps with protecting an inheritance from common law spouses.
Regional legal variations:
On a federal level, for tax or immigration purposes, you and your partner are considered common law if you have been living in an interdependent relationship for at least 12 continuous months, your partner is the parent of your child by birth or adoption, or your partner has custody and control of your child (or had custody and control immediately before the child turned 19), and your child is wholly dependent on them for support.
For estate planning, which is under regional jurisdiction, your relationship must meet the legal requirements of your region to be considered officially common law.
Here are the criteria of common law across Canada, accurate as of April 5th, 2024:
If you and your partner meet the criteria for common laws in your region, and live in British Columbia, Manitoba, Saskatchewan, or the Northwest Territories, you will be considered spouses and have inheritance rights to each other’s estates.
Protecting your inheritance:
You can protect your inheritance and the inheritance of your loved ones by creating an estate plan and encouraging your loved ones to do the same. Your estate plan should include:
- A will, where you name executors, beneficiaries, and guardians* for any dependents
- Power of attorney documents, where you appoint someone you trust to handle your health care and financial decisions
- An asset list, which documents all of your solely own assets, which may include assets you added to your side of a cohabitation agreement
- Adding beneficiaries for your other assets, such as insurance, investment accounts, and pensions
Naming your loved ones as beneficiaries ensures they receive the inheritance you want them to have and protects them from being overlooked.
*There are two types of guardians you can name in your will. Guardians for any dependant children you may have, and guardians for pets. If you have a pet that you want your partner to take care of, naming them as a pet guardian ensures they can assume ownership and take care of your pet if anything happens to you.
Estate planning, wills and common law partners
Making a will is about leaving behind a legacy that reflects who you are and the people and things you care about. By naming your partner as a beneficiary in your will, you ensure that they receive an inheritance from your estate after you pass away.
As the person who may know you and your wishes better than anyone else, your common law partner may also be a great choice to name as your executor or attorney.
Ready to get peace of mind and protect your loved ones?
