Spousal Wills After Death

Author: Linda Mueller – Communications Manager

Your common law spouse of four years, Ben, has died at work from a massive stroke.

Neither of you saw it coming. You lifted weights together every morning. How could this happen?

You’re still grieving when his ex-wife lets herself into his Bracebridge cottage with her spare key. Ann’s a hard-nosed realtor who says he left her the ’70s bungalow in his will. Despite owning a 2,000-square-foot townhouse in Ottawa, she has already moved in with her perky Pekinese, Lily, and their adorable six-year old, ginger-haired Charlotte.

You love that place. Most of all, it reminds you of the great times you had together, cuddled up in your hand-crafted Adirondack chairs on the cedar deck, watching the sun set over the Muskoka River. You can see her there now, warming herself by the granite fireplace while you seeth in your frigid, rented North York condo.

You frantically rifle through Ben’s wallet, searching for his lawyer’s business card and race over to his glass and chrome office. It’s the first time you have met face to face. Your eyes glaze over when he asks if you had a joint will.

You meant to rewrite your wills. You just never got to it.

Now what do you do?

Ben wrote a will in 2009 when he and Ann were married and updated it in 2012, after Charlotte was born.  The couple separated in 2014 and has been living apart since. They shared custody of Charlotte, who has been living with her mother since the separation, in their Ottawa townhouse.

Ben bought the cottage in 2007, when sales were on a downswing, for $89,000 and fixed it up. Ann, who has always earned more than Ben, bought the townhouse for $375,000 in 2008 and it is currently valued at $650,000. Ben has been using the cottage exclusively, but willed it to Ann, with Charlotte as her beneficiary.

Ben could have sold the cottage after he married and before the couple separated. Since that didn’t happen, both the townhouse and cottage are considered matrimonial homes under Ontario family law, despite the fact Ben, Ann and Charlotte spent most of their time at the townhouse. The cottage is now worth $259,000.

Unfortunately for you, under Ontario estate law, a will is not affected by separation. Even though you may have been common law spouses for several years, his marriage survived his death for wills and estate purposes.

Without a divorce or change in will, the beneficiaries are unaffected by your common law status. That means any married spouse retains title to matrimonial property and designated beneficiaries have inheritance rights. A former spouse may even make a financial claim against the remaining estate for the ongoing financial support they won’t receive due to death. That claim will be due before the balance of the estate can be divided up.

While you have no automatic right to equalization of property after death of a common law spouse, there are some exceptions. If you were financially dependent on your common law spouse, you could file a claim against their estate for support. In Ontario, common law spouses must make adequate provision for dependents in their will.

As much as you care about Charlotte’s feelings, now is the time to contact a ClearWay Law wills and estates lawyer, 24/7 at  (877) 978-1669. Besides the cottage, you’ll need to know if Ann is also the beneficiary for Ben’s RRSPs, RRIFs, pension plans or life insurance policy.