Book an appointment

Estate Planning for Common-Law Partners: The Risks and Rights

Table of Contents

Being a common-law partner in Canada might feel like marriage in every way…until you face the law on death, inheritance, or estate rights.
More than ever before, Canadians are choosing to build lives together outside of marriage. Whether it’s a long-term relationship, raising children, or owning property together, common-law couples are reshaping the modern family structure. Yet, when it comes to inheritance law and estate planning, many are shocked to learn they’re not as protected as they thought.
At Forum Estates LLP, we often meet clients surprised by what the law doesn’t guarantee. This blog explores those gaps–and how to close them through careful, customized estate planning.

Canada’s Changing Family Structures

As of the most recent census, nearly one in five couples in Canada are living common-law. In some provinces like Quebec, the rate is over 30%. And yet, laws protecting common-law partners vary significantly depending on where you live…and whether you have an estate plan in place. 

Unlike married couples, common-law partners do not always inherit automatically. If you die without a Will, your partner could be excluded entirely from your estate—even if you’ve been together for decades. 

In provinces like Ontario and Quebec, this isn’t a theoretical risk; it’s the default outcome. 

“Many Canadians falsely assume that long-term cohabitation grants them the same rights as a married couple. The law doesn’t always agree.” 

What the Law Says: Patchwork Protection Across Provinces

Let’s break it down:
  • Alberta: Provides for “adult interdependent partners” under the Wills and Succession Act, which may grant inheritance rights if there’s no Will.
  • British Columbia: Recognizes common-law partners (after two years of cohabitation) under the Wills, Estates and Succession Act (WESA). They may inherit through intestacy and can apply to vary a Will.
  • Ontario:Common-law partners have no automatic inheritance rights unless named in a Will. They can pursue equitable claims (like unjust enrichment), but not a share of the estate through intestacy (willful.co).
  • Quebec: The law treats common-law spouses as strangers unless legally married or named in a Will.

Citing Tataryn v. Tataryn Estate (1994), the Supreme Court clarified: 

Under statutes such as the Wills Variation Act, courts can vary a testator’s will if it fails to make ‘adequate, just and equitable’ provision for spouses or children, reflecting the tension between testamentary freedom and dependent protection.

Legal Recourse (Sometimes): Wills Variation and Dependants Relief

In some provinces, courts can override unfair Wills through statutes like BC’s WESA Section 60, which allows surviving partners to seek a “just and equitable” provision if they’re left out or inadequately supported.

The 1994 Supreme Court case Tataryn v. Tataryn Estate confirmed that moral and legal obligations toward a spouse or partner must be considered when writing a Will. In provinces that permit Wills variation, this has empowered many common-law partners to challenge exclusion from estates–though success is never guaranteed and litigation can be expensive and emotionally draining.

In Ontario, partners may rely on equitable remedies like constructive or resulting trusts, but not direct rights under intestacy law.

Tax and Trust Planning: Latest Updates for 2025

As of March 2025, the Canadian government cancelled the proposed hike in the capital gains inclusion rate, which would have raised the rate from 50% to 66, ⅔% for most trusts and corporations. This decision preserved the 50% inclusion rate, helping maintain predictability in long-term estate planning (canada.ca).

Estates and trusts still benefit from: 

  • Spousal rollover provisions under the Income Tax Act, which allow deferral of capital gains on death between spouses--but not automatically for common-law partners unless designated.
  • The increased lifetime capital gains exemption, now at $1.25 million, which applies to certain business, farm, and fishing property shares (FaberLLP.com).
  • CRA guidance in 2024 confirmed that trust structures can allocate capital gains to beneficiaries strategically, preserving tax benefits under the 21-year deemed disposition rule (invesco.com).

Essential Estate Planning Tools for Common-Law Partners

  • 1. Write a Comprehensive Will

This is the single most important step. Clearly name your partner as a beneficiary and, if needed, as executor. Without a Will, they may receive nothing. 

  • 2. Use Trusts Strategically
Trusts can protect children from previous relationships, manage capital for a surviving partner, or delay distribution until certain conditions are met. A partner trust can provide income to a surviving common-law spouse while preserving capital for children.
  • 3. Create Cohabitation Agreements
Such written contracts may set forth what belongs to who and what expectations may be in cases of death or separation. They can be of special assistance to secure the input of each partner in the real estates or shared property.
Without these documents, your partner may not be able to manage your finances or make medical decisions if you become incapacitated. Hospitals and banks may turn to legal next of kin instead, excluding your partner, who may have known you better than anyone else.
  • 5. Consider Insurance Solutions
Life insurance may be used to equalize an inheritance or to be able to leave your partner taken care of without regard to selling joint assets. It is a necessity in case of trust or tax planning.

A Real-World Story

Danielle and Andrew lived together for 12 years, sharing a mortgage, pets, and a deep bond. But when Andrew passed suddenly without a Will, Danielle learned she had no legal claim to his estate in Ontario. His estranged siblings inherited the home they’d shared and most of his RRSPs. Danielle had to file a trust claim, spending over two years and $60,000 in legal fees, just to keep her own home.

What We Offer at Forum Estates LLP

At Forum Estates LLP, we understand that modern families need modern estate planning. We work closely with common-law couples to:
  • Draft customized Wills that reflect your family’s reality
  • Establish partner and family trusts with tax efficiency
  • Draft cohabitation and relationship agreements
  • Navigate real estate ownership and joint tenancy
  • Minimize taxes and avoid litigation risk
“We want our clients to feel secure…knowing their partners will be protected even in the most uncertain moments.”
  • Key Takeaways
  • No Will = No inheritance for common-law partners in most provinces.
  • Courts may offer relief in certain jurisdictions, but it’s unpredictable.
  • Trusts, agreements, and careful drafting protect both partners and children.
  • Cancelled tax hikes in 2025 preserve some key planning strategies, but don’t remove the need for a sound estate plan.
  • Proper planning can reduce litigation, taxes, and family conflict.

Final Word: Don’t Leave It to the Law

If you’re in a common-law relationship, your estate plan must be proactive and intentional. The law may not recognize your relationship the way you do, but your Will can. Your trust structure can. Your voice can.

Visit forumestates.ca or book a consultation with our team today. Let’s make sure the people you love are protected with clarity, confidence, and compassion. 

  • Disclaimer:

This blog is intended as general information. Please consult a qualified estate lawyer to address your specific legal needs.