Probate for Common-Law Partners in Canada: Why Province Matters

A Toronto woman who had lived with her partner for nineteen years discovered, two weeks after his sudden death, that his estate was going to his two adult children from a prior marriage — not to her. He had never made a will. Ontario's intestacy formula gave the estate to his children. Her name was not on the deed of their shared home; it had been in his name throughout. The car was in his name. The cottage they had bought together was in joint tenancy and did pass to her — but that one asset was modest compared to the rest of the estate she had assumed they shared. She retained estate counsel within the month, and the dependant-relief application would take fourteen months to resolve.

That scenario plays out far more often than common-law couples expect, and the province they live in is the single biggest determinant of what their surviving partner inherits. This article walks through how Canadian intestacy and probate treat common-law partners by province, what protection exists where statute provides none, and how planning ahead changes the outcome. It covers the common-law provinces and the territories only. Quebec is a civil-law jurisdiction with its own regime — it does not recognize de facto (common-law) unions for succession purposes at all, regardless of cohabitation length — and is out of scope here; Quebec residents should consult a notary.

Common-law for inheritance is not common-law for tax #

A first source of confusion: the federal government and the provinces use different definitions of common-law for different purposes.

The Income Tax Act^[3] treats a couple as common-law for tax purposes after 12 months of continuous cohabitation in a conjugal relationship — or earlier if they have a child together. This federal definition controls spousal rollover at death, RRSP/RRIF and TFSA designations to a common-law partner, GST/HST credit splitting, and the principal residence exemption rules.

Provincial inheritance law is a separate and stricter set of definitions. British Columbia, Manitoba, and Saskatchewan generally require two to three consecutive years of cohabitation for common-law partners to be treated as spouses under the intestacy formula. Nova Scotia, Ontario, Alberta, Newfoundland, PEI, and New Brunswick do not include unregistered common-law partners in their intestacy formulas — partners in those provinces have no automatic intestate inheritance regardless of cohabitation length, though Nova Scotia treats a formally registered domestic partnership as a spousal relationship.

The implication: a couple can be common-law for federal tax purposes (spousal rollover applies, RRSP designations work like a spouse's) but excluded from intestate inheritance under their province's law. The two questions need to be answered separately.

The provinces that include common-law partners in intestacy #

Where statute extends intestate inheritance to common-law partners, the practical outcome is similar to a married spouse's.

British Columbia. The Wills, Estates and Succession Act^[2] defines spouse to include a person who has lived with another person in a marriage-like relationship for at least two years. Where the deceased dies intestate, the surviving spouse (including a qualifying common-law partner) receives the preferential share (defined by regulation) plus a share of the residue depending on whether there are descendants of the deceased only with the surviving spouse, or with another person.

Manitoba. The Intestate Succession Act (CCSM c I85) treats as a spouse, for intestate inheritance purposes, a common-law partner who registered the relationship with the Vital Statistics Agency, or who cohabited with the deceased in a conjugal relationship for at least three years — or at least one year if the couple are together the parents of a child.

Saskatchewan. The Intestate Succession Act, 2019^[5] (which replaced the 1996 Act) treats a person who cohabited with the deceased as spouses continuously for at least two years — and who was still cohabiting with the deceased at death or had ceased cohabiting within the preceding 24 months — as a spouse for intestacy.

The three territories. Common-law partners are generally included in intestate succession with cohabitation thresholds varying by territory.

The provinces that exclude common-law partners from intestacy #

In Nova Scotia, Ontario, Alberta, Newfoundland, PEI, and New Brunswick, the intestacy formula does not include unregistered common-law partners. Nova Scotia is a partial exception: a couple who formally register a domestic partnership under provincial law are treated as spouses for intestacy, but mere cohabitation — however long — does not confer intestate rights. In all of these provinces, an unregistered surviving common-law partner generally takes no share, and the estate passes to children, parents, siblings, or other blood relatives under the statutory order.

Ontario. The Succession Law Reform Act^[1] intestacy provisions use "spouse" in the technical sense of a person to whom the deceased was married. Common-law partners — regardless of cohabitation length — do not receive an intestate share. The recourse is a dependant-relief application under Part V of the same Act, where a person who was financially dependent on the deceased can seek provision from the estate.

Alberta. The Wills and Succession Act^[4] defines spouse for intestacy purposes more narrowly than for other family-law purposes. Common-law partners are generally excluded from intestate inheritance. Adult interdependent partners — Alberta's specific statutory category — can have intestate inheritance rights under specific conditions but the framework is different from the married-spouse framework.

Newfoundland, PEI, New Brunswick. Similar exclusions apply, with dependant-relief or family-maintenance claims being the fallback recourse for excluded surviving partners.

Dependant-relief claims: the fallback in exclusion provinces #

Where statute excludes common-law partners from intestate inheritance, the surviving partner's principal recourse is a dependant-relief or family-maintenance application.

Ontario's dependant-relief framework^[1] applies where the applicant was a person whom the deceased was, immediately before death, providing support or was under a legal obligation to provide support. The court can order provision from the estate "as is adequate" considering specified factors. Cohabiting partners are explicitly included in Ontario's dependant-relief definition of "dependant" — so the right to make a claim exists even where the right to intestate inheritance does not.

The dependant-relief application is a court process. Typical timeline runs 6 to 18 months from filing to resolution, depending on the contestation of facts. Typical recovery: highly variable. Long-term cohabiting partners with shared financial lives often recover substantial provision; shorter or more recent partners may recover modest amounts or nothing at all. Legal costs run materially — typically $25,000 to $80,000 on a contested application.

The dependant-relief framework is not a substitute for clear estate planning. It is a fallback that produces uncertain outcomes after the death.

What probate actually looks like for the surviving common-law partner #

The administration steps for the surviving common-law partner depend on whether they were named in the will and on what assets were structured to pass outside the estate.

Where named as executor and primary beneficiary in a will: The administration proceeds the same as for any spouse in that role. The will is probated, the surviving partner administers the estate under the executor framework, and the surviving partner receives the assets as the will directs. The federal spousal rollover for capital property and registered accounts^[3] applies if the rollover requirements are met.

Where assets pass by joint tenancy or beneficiary designation: Joint-tenancy property passes outside the estate to the surviving joint tenant — regardless of marital status. RRSPs, RRIFs, TFSAs, and life insurance with the common-law partner designated as beneficiary pass directly to that partner. These structures are powerful estate-planning tools precisely because they work the same for common-law partners as for married spouses.

Where the deceased died intestate and the province excludes common-law partners: The surviving partner is generally not the administrator of the estate; the children, parents, or siblings under the intestacy formula take that role. The surviving partner can pursue a dependant-relief claim as described above, often while the estate is being administered by others.

Practical planning for common-law couples #

Three areas where common-law couples can materially improve their position without making any change to their relationship status.

Write wills. A clear, signed, witnessed will naming each common-law partner as primary beneficiary and (typically) executor sidesteps almost all of the intestacy ambiguity. Common-law couples are statistically less likely than married couples to have wills — and disproportionately affected when they don't. The cost of preparing a simple will is modest relative to the dispute risk it eliminates.

Hold the family home in joint tenancy. Joint tenancy with right of survivorship causes the home to pass outside the estate to the surviving co-owner. This is reliable, simple, and works identically for common-law and married couples.

Use beneficiary designations on registered accounts and insurance. RRSPs, RRIFs, TFSAs, and life insurance designations to the common-law partner pass directly outside the estate. These can transfer substantial assets cleanly without probate.

Even where formal registration is not used, contemporaneous documentation of cohabitation start date, shared bank accounts, joint utility bills, joint health-insurance enrolment, and similar evidence is useful if a dependant-relief claim later becomes necessary.

Consider a cohabitation agreement. Where the financial picture is asymmetric — one partner with materially more assets — a cohabitation agreement addressing what happens on death (and on relationship breakdown) reduces uncertainty for both partners. The agreement does not replace a will but supports it.

What this means if you are common-law and reading this now #

If you are in a common-law relationship in Canada and have not yet addressed estate planning, the priority list is short.

Each of you write a will. Name the other as primary beneficiary if that is your intent. Name an executor — usually the partner, with an alternate. Include any dependant children. Address specific bequests if relevant.

Confirm beneficiary designations on RRSPs, RRIFs, TFSAs, and life insurance. Update them to name your partner where intended. These designations override the will and pass outside the estate.

Confirm the title structure on the family home. Joint tenancy with right of survivorship is the strongest protection; tenancy in common does not produce survivorship.

Talk to an estate lawyer if you have material assets, blended-family complications, or business interests. The cost of advice ($500 to $2,000 for a consultation and plain-vanilla wills) is modest compared to the cost of a dependant-relief application after death.

For related reading, see our pillar on what does an executor do in Canada, our companion on wills for common-law couples in Canada, and our guide on dependant relief in Canada. The Will Creator at It's Simple Will handles common-law relationships explicitly — including the province-specific complications — and produces a clean, witnessed will that sidesteps the intestacy gap.