Contesting Your Common-law Spouse’s Estate

Published on 29 August 2022, 07:22:56 AM

When “Sandy” walked out on “Lou” after a fight on her birthday, he had no idea he would be essentially homeless. Sandy left no heirs and no will when she died alone at her family’s cottage three days later. Lou was out of luck legally. Or was he? (All names are changed to protect identities.)

Spouse of 11 Years Dies Without a Will 

Dying intestate (without a will) left the retired 74-year-old with diabetes, a heart condition and no home of his own. Though he shared Sandy’s Markham house for 11 years, she owned it. With only OAS and CPP (Old Age Security and Canada Pension Plan) to live on, he relied on his common-law spouse for food and shelter. Court records show he had $2,500 in monthly income and $2,300 in expenses.     

What Happens When Husband is Married to Another

Lou immigrated to Canada from Yugoslavia in 1969 and spoke mostly Macedonian and some broken English. Despite living with Sandy, he was still married to his first wife, “Petra”, and had two grown daughters with her. It was true that Lou and Petra owned a Toronto home. But the couple hadn’t lived together as spouses since 1979. 

Who Gets the Matrimonial Home 

Lou and Petra’s marriage went downhill after they bought their matrimonial home in 1976. To hear the court evidence, he enjoyed dancing and entertaining “strange women” who called their home for him. Ten years after arriving in Canada, Petra was no longer talking to Lou. He had his own bedroom and cooked on a hot plate in the basement. They lived separate and apart in their shared home until 1995, when he moved in with Sandy.

New Romance Brings New Home

Sandy and Lou met at work and were an item by 1990. Her Ladyslipper home was bought in 1973, three years after divorcing her first husband. Lou and her spent all their time together there. Although he talked about divorcing Petra, Sandy discouraged him from spending his money on legal fees. 

Living Common-law in Ontario

Lou and Sandy had a typical common-law relationship. Though not married, they cohabitated for more than three years and that made them spouses for legal purposes. Lou’s daughters and neighbours agreed the retired couple were inseparable, most of the time. Lou cooked and maintained the house, yard and pool. They socialized with friends as a couple and he paid for her entertainment when they went out. While Lou didn’t have much, he helped with household expenses when he could. Vacations were spent at her family cottage, which Lou also kept up.

When Dying Leaves Common-law Spouse Behind

So when Sandy stomped out of the Ladyslipper house on her 74th birthday, Lou fully expected her to return that day. He was shocked to discover she had gone to the cottage and died. With no will, her assets were due to go to the Ontario Public Guardian and Trustee (PGT).

Getting Equity From a Spousal Estate

Lou may not have had many assets to contribute to his relationship with Sandy. But in the final analysis, the court ruled he was owed what Ontario law calls “adequate provision”. With little of his own, Lou would struggle to manage on his own after her death. But as a common-law spouse, he qualified for spousal support. Support is forever if a marriage lasted 20 years or longer or meets the “rule of 65” criteria. Lou’s case fell under the rule of 65 —  adding his age when Sandy died and the years they had lived together exceeded 65. That equation ensured his spousal support would last for life.

A Fair Ruling

The court agreed Lou needed support to live out the rest of her life. The ruling gave him the right to:

• live in the Ladyslipper house until he died or moved to a retirement or nursing home
• be assisted with any repairs over $500 the house needed — he would pay for anything else himself
• a monthly allowance from the PGT 
• and a lump sum for what Lou would have received if the court order had been made the day after Sandy’s death, plus interest.

Keeping Up Appearances

The court’s ruling gave the PGT on ongoing role in Lou’s and Sandy’s financial affairs. Lou had to report any home maintenance bills and give the PGT access to make repairs or get estimates. Repairs had to be done in consultation with the PGT, who would tender the work and pay for it. PGT staff could deduct money from his monthly allowance to pay home insurance, property taxes, utilities and other home-related expenses. Lou received the balance. 

Living a Good Life After Spousal Death

With Sandy gone, the PGT would keep tabs on Lou’s medical condition to ensure he could keep up the Ladyslipper home, with reasonable help. His monthly allowance was for life and he could use it to move elsewhere if he decided to. Since Sandy didn’t have any other heirs, any residue (money or property) left when Lou died and after PGT admin expenses would go to the province. They may have been fighting on their last day together, but Lou wasn’t left behind after all.

Get Advice on Contesting a Will

Axess Law Ontario wills and estates lawyers answer your questions about how to make a claim against a deceased spouse’s estate. Online video conferencing with experienced estate lawyers is available 7 days a week, at times convenient for you. Use our online booking form to make a video call appointment or dial toll-free to 1-877-522-9377 or in Greater Toronto at 647-479-0118. You can meet in person with a lawyer at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Click here to learn more about Axess Law’s wills and estate services.