Sixteen Years, But Not His Spouse: The Legal Reality of Common-Law Grief – in Month Six
Six months into grief, I was learning that losing your person is not one loss.
There is the obvious loss. The person you love is gone.
Then there are the secondary losses. The routines. The plans. The person you text when something funny happens. The person whose car you recognize pulling into the driveway. The future you assumed was waiting for you.
And then, if you are a common-law spouse in Ontario, there can be another loss waiting for you—one you may have absolutely no idea is coming.
The legal recognition of your relationship.
James and I were together for 16 years.
Sixteen years.
We built a life together. We shared a home, responsibilities, memories, ordinary Tuesdays, holidays, arguments, laughter, dogs, bills, plans and all of the tiny things that make two separate lives become one life.
I was his partner.
I was his spouse.
I was the person who went to sleep beside him and the person whose life changed forever when he died.
But we weren't legally married.
And James didn't have a will.
Those two facts would become far more important than I ever imagined they could be.
What Does “Spouse” Actually Mean?
Before James died, if someone had asked me whether we were spouses, I wouldn't have hesitated.
Of course we were.
His colleagues were actually surprised when I told them we weren't married. He called me his wife at work.
We had been together longer than many married couples.
And in many parts of Canadian life, common-law partners are recognized as spouses.
But here's something I wish I had understood before James died:
There isn't one universal definition of “spouse.”
Different laws and different government programs can define your relationship differently.
The federal government may recognize you as a spouse for one purpose while Ontario law does not recognize you as a spouse for another.
That sounds like a technical legal distinction.
It isn't when the person you love dies.
It becomes your life.
Sixteen Years — And No Automatic Right to Inherit
Ontario's estate law contains a distinction that I suspect many common-law couples don't know about.
If someone dies without a will—called dying intestate—Ontario's rules determine who inherits the estate.
For those intestacy rules, a common-law partner does not automatically inherit as a legally married spouse would.
Read that again.
You can live together for years.
You can build an entire life together.
You can introduce each other as husband and wife, spouse or partner.
You can be recognized as common-law by other government systems.
And if your partner dies without a will, you do not automatically inherit their estate in Ontario simply because you were their common-law spouse.
I didn't know that.
I suspect a lot of people don't.
There may be legal claims available to a surviving common-law partner depending on the circumstances, and anyone facing this situation should get individual legal advice. But that is very different from automatically being treated as the surviving spouse under Ontario's intestacy rules.
And imagine discovering that while grieving.
You're barely functioning.
You're trying to understand how somebody can be alive one day and gone the next.
You're making phone calls you never imagined making.
You're cancelling things with their name on them.
You're answering questions.
You're filling out forms.
You're telling the story of their death over and over again to strangers.
And somewhere in the middle of all of that, you discover that the law's definition of your relationship may not match the life you actually lived.
That hurts in a way that is difficult to explain.
Except Sometimes I Was His Spouse
Here is where it gets even stranger.
The Canada Pension Plan recognizes common-law partners for the CPP survivor's pension. Under CPP rules, a common-law partner can qualify as a survivor if the couple lived together in a conjugal relationship for at least one year.
So, federally, I could be recognized as James's surviving common-law partner.
Eventually, I was approved for the CPP survivor's pension.
There was also the CPP death benefit.
In one government system, our relationship existed.
In another incredibly important legal context, being together for 16 years did not give me the same automatic inheritance rights that marriage would have.
Same couple.
Same relationship.
Same death.
Different definition of “spouse.”
That is something people need to know before they are grieving.
“We Don't Need a Piece of Paper”
How many couples have said that?
Maybe you have.
Maybe you have been together for 10, 20 or 30 years and think, We're basically married.
Emotionally? Absolutely.
Socially? Probably.
Legally?
That is where you need to be careful.
This isn't an argument that everyone should get married.
It is an argument that everyone should understand what choosing not to marry can mean legally—and make deliberate plans accordingly.
Because love does not create a will.
Time together does not create a will.
Calling each other spouses does not create inheritance rights that the law doesn't provide.
And believing that “common-law is basically the same as married” does not make it true.
Grief Shouldn't Require a Law Degree
One of the things death has taught me is how much administrative work we expect grieving people to perform.
Within days or weeks of losing someone, people can suddenly be dealing with banks, insurance companies, pensions, government departments, employers, funeral homes, property, taxes and estates.
Every organization wants a form.
Every form wants documentation.
Every system has its own rules.
And the grieving person is somehow expected to figure all of this out while their brain is still trying to comprehend the fact that someone they love is never coming home.
Then add an intestate estate.
Add common-law status.
Add family relationships.
Add disagreement.
Add a legal system you never expected to encounter.
Grief is already exhausting.
You shouldn't have to discover the legal vulnerability of your relationship after your partner has died.
Your Postal Code Shouldn't Define Your Relationship
Perhaps one of the most frustrating things I have learned is that what happened to me wasn't inevitable.
It was, in part, a consequence of where we lived.
James and I were together for 16 years. Yet because we lived in Ontario, when he died without a will, I was not automatically entitled to inherit his estate as his common-law spouse.
Ontario law does not recognize a common-law partner as a spouse for the purpose of intestate succession.
But cross a provincial or territorial border and the answer can be very different.
British Columbia recognizes someone who has lived with another person in a marriage-like relationship for at least two years as a spouse under its wills and estates legislation. Alberta recognizes qualifying unmarried partners as “adult interdependent partners,” generally after three years. Saskatchewan recognizes qualifying common-law spouses, generally after two years. Manitoba recognizes qualifying common-law partners under its intestacy legislation. Yukon can recognize a common-law spouse after 12 months of living together immediately before the death. The Northwest Territories also includes common-law spouses in its intestacy legislation.
Think about that for a moment.
Sixteen years.
James and I weren't a new couple. We hadn't been testing the waters for a year or two. We had built a life together for sixteen years.
Had we built that same life in several other parts of Canada, the law governing an estate without a will could have recognized me as his surviving spouse.
But we lived in Ontario.
Our relationship didn't change at the provincial border.
Our commitment didn't change.
The sixteen years didn't change.
What changed was the law.
And that raises a question I think Ontario needs to answer:
If other Canadian jurisdictions can recognize a long-term common-law partner for intestate succession, why can't Ontario?
I'm not suggesting that estate law is simple or that every common-law relationship should automatically create inheritance rights from the moment two people move in together. Other provinces have demonstrated that safeguards and qualifying periods are possible.
Ontario could establish a minimum period of cohabitation.
It could create provisions dealing with separation.
It could allow couples to opt out.
It could establish protections where there are children from previous relationships.
There are models elsewhere in Canada that Ontario could examine.
What I struggle to accept is the idea that doing nothing is somehow the only option.
Because the consequence of doing nothing isn't theoretical.
I lived it.
When the Legal Gap Can Hurt Even More
There is another part of this conversation that I don't want to overlook.
Ontario's intestacy rules for common-law partners can affect anyone, regardless of sexual orientation or gender identity. But the consequences of those rules may be particularly painful for some members of the LGBTQ2+ community.
For some LGBTQ2+ people, a partner has been the person who became family when relationships with biological relatives were strained, complicated or lost altogether. Some people may not be out to every member of their family. Others may have relatives who never fully accepted or acknowledged their relationship.
Now imagine that partner dies without a will.
The surviving partner isn't only grieving. They may suddenly find themselves dealing with relatives who did not recognize their relationship in life while Ontario's intestacy laws do not automatically recognize them as a spouse for inheritance purposes either.
There is also history here that matters.
Same-sex couples did not have equal access to civil marriage throughout Canada until 2005. There are LGBTQ2+ couples who built lives together during years when getting married simply wasn't an option available to them.
That history makes the suggestion that a common-law couple could have protected themselves simply by getting married far more complicated than it first appears.
And even today, marriage is a personal choice. People shouldn't have to marry because they are frightened that otherwise the law will disregard a long-term partnership after one of them dies.
This is one reason I believe this conversation needs to be bigger than my own experience.
My story is one example of what can happen when the legal definition of family doesn't match the family someone actually built.
There are many others.
When we talk about changing Ontario's intestacy laws, we aren't talking about giving special treatment to one kind of family.
We are asking whether our laws adequately recognize the reality that families in Ontario don't all look the same—and whether a surviving partner should become legally vulnerable at precisely the moment they are experiencing one of the greatest losses of their life.
Just Let Me Grieve
When someone dies suddenly, their surviving partner should be allowed to grieve.
They shouldn't also have to discover that the person they spent sixteen years calling their spouse isn't necessarily their spouse when the law that distributes the estate asks the question.
There is already enough to survive in those first days, weeks and months.
There is the shock. The disbelief. The funeral arrangements. The phone calls. The empty side of the bed. The belongings that haven't moved. The routines that suddenly make no sense because half of the routine is gone.
There shouldn't also be a moment when someone has to ask, Does the law even recognize who I was to this person?
The relationship was real.
The grief was real.
The life we built was real.
Our laws should be capable of recognizing that reality too.
And Then There Is Advocacy
My experience also changed something else in me.
It made me question why Ontario's law works this way.
Other Canadian jurisdictions have already demonstrated that it is possible to recognize long-term common-law partners for intestate succession. Why has Ontario failed to catch up?
I understand that marriage is a legal status and that laws need definitions and boundaries.
But I also believe we should be able to ask whether our laws reflect the way Canadians actually build families today.
Long-term common-law relationships are not unusual.
People build homes together, share finances, care for each other through illness, raise children, support careers and grow old together without marrying.
And when one person dies, the surviving partner may discover that the relationship recognized throughout their everyday life does not receive the legal recognition they expected.
That deserves conversation.
Advocacy doesn't always begin with a huge organization or a polished campaign.
Sometimes it begins with someone saying:
This happened to me. I didn't know this could happen. Other people need to know.
It can mean writing to your MPP.
I did this.
It can mean contacting the Attorney General of Ontario.
I did this.
It can mean reaching out to organizations and people who may be able to help advocate for modernization of succession and family law.
I reached out.
It can mean signing—or starting—a petition.
I did that too.
It can mean sharing your experience publicly.
I do this as often as I can, and as loudly as I can.
And it can mean something much smaller: telling another common-law couple, “Please make a will.”
I say this every chance I get.
Because advocacy isn't only about changing legislation.
Sometimes it is about making sure the next person isn't blindsided by the same system that blindsided you.
So What Can You Do?
If you are reading this and you have a common-law partner, please don't read it as a reason to panic.
Read it as a reason to have a conversation.
Ask questions now.
Do we both have wills?
Are they current?
Who is named as executor or estate trustee?
Who are the beneficiaries on our life insurance, RRSPs, TFSAs and pensions?
Do we understand what happens to our home if one of us dies?
Do we know which assets pass through an estate and which may pass directly to a named beneficiary or joint owner?
Do we have Powers of Attorney for Property and Personal Care?
Have we legally documented who should make decisions for us if we cannot make them ourselves?
Would the person we consider our spouse actually be protected if one of us died tomorrow?
And don't assume.
That is probably the biggest lesson I can offer.
Don't assume the law sees your relationship the way you do.
Find out.
And if you believe Ontario's law needs to change, don't assume someone else will speak up either.
Ask questions.
Write the letter.
Contact your MPP.
Support the advocacy.
Share the information.
Because change has to start somewhere.
The Legal Reality of Grief
I will never measure my relationship with James by what a statute called us.
Sixteen years cannot be reduced to a checkbox.
We built a life.
We loved each other.
And no piece of legislation can make that relationship more or less real.
But legislation can determine what happens to the life two people built after one of them dies.
That distinction matters.
Three years after James died, I understand far more about estates, intestacy and common-law rights than I ever wanted to know.
I learned it because I had to.
I wish I had learned it while James was alive.
So this month, instead of ending with something only about grief, I want to leave you with something practical.
If you love someone, make sure the legal paperwork reflects that love.
Make the will.
Set up your Powers of Attorney.
Make sure the right people are legally able to make decisions for you if you can't.
Review your beneficiaries.
Have the uncomfortable conversation.
Ask what would happen if one of you died tomorrow.
And if you discover that the law doesn't protect families like yours in the way you believe it should, ask why.
Then speak up.
Because grief will always be painful.
Finding out that the law doesn't recognize your family the way you thought it did shouldn't have to be part of it too.
Join me for our next installment — Month 7: The Calendar Doesn't Know You're GrievingHolidays, birthdays, anniversaries, traditions and all the dates that suddenly mean something different.
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