Common-Law Parents in Ontario: Why You Need a Will and Estate Plan for Your Children

The short answer: Common-law partners in Ontario don't automatically inherit from each other under the province's intestacy rules, and a will is how each parent can document who should have decision-making responsibility for their children if both parents die. Without a will, those wishes may not be clearly documented.

Having a family doesn't automatically create an estate plan.

Kate and Mark are a common-law couple in Whitby with two young children. They've talked about what would happen to their children if they both died, but they can't agree. Kate wants her sister to raise the children. Mark wants his brother. Because they never resolve the disagreement, they never make a will.

Tragically, Kate and Mark both die unexpectedly. Their children are left without either parent, and without a clear expression of their parents' wishes about who should have decision-making responsibility for them.

You can't know what the future will bring. You can, however, make your wishes clear while you're here to make them.

Is naming someone to care for your children enough?

A parent might think, "My sister will take care of my children." But choosing someone you trust is only the beginning. Parents should think carefully about what they want to happen to their children and make sure their wishes are properly documented. Questions to consider include:

• Who would care for your children if both parents died?
• Who would make decisions about their care and upbringing?
• Have you agreed with your partner about who you would choose?
• Have you formally documented your wishes?
• Have you arranged your finances so funds would be available for their care?

These aren't always easy conversations, but they're worth having.

What happens if one common-law parent dies?

If one parent dies, the surviving parent will generally continue caring for the children. However, there can still be important estate and family-law considerations depending on your circumstances.

One important consideration for common-law couples is what happens to the deceased parent's estate. In Ontario, a common-law partner does not automatically inherit under the province's intestacy rules in the same way a legally married spouse can. If someone dies without a will, their estate is distributed according to Ontario's intestacy laws.

This can create difficult circumstances for a surviving common-law parent, particularly when the couple owns property in only one partner's name, or when there are children from a previous relationship. It's also an important reason for each parent to have their own properly prepared will.

What happens if both parents die?

This is the question many parents would rather not think about, but it's one of the most important questions an estate plan can address.

You may have a parent, sibling, close friend, or another family member you'd want to step into that role. But simply assuming that person will automatically become responsible for your children is not the same as having a legal plan.

Kate and Mark's situation may seem extreme, but the underlying issue is one many common-law parents put off. It can be uncomfortable to talk about what should happen to your children if you're no longer here. However, avoiding the conversation doesn't create a plan.

Can you name someone to care for your children in your will?

Under Ontario's Children's Law Reform Act, a person who has decision-making responsibility for a child can appoint someone by will to have decision-making responsibility after their death.

Having individual, up-to-date wills allows each parent to clearly document their wishes and consider what should happen to their children if they're no longer able to care for them.

How can common-law parents plan for their children's future?

1. Talk with your partner about who you'd choose to care for your children if you both died.
2. Work toward an agreement. If you can't agree, speak with a lawyer.
3. Each parent should make their own will. Individual wills let each of you document your wishes.
4. Formally document your wishes rather than assuming your chosen person will step in.
5. Arrange your finances so funds would be available for your children's care.
6. Keep your wills up to date as your family and property change.

Common-law parents may have additional estate planning considerations. Read our guide to Estate Planning for Common-Law Partners in Ontario.

Contact

Brian McMurter is a real estate and estate planning lawyer at McMurter & Associates in Whitby, helping Durham Region, Ontario residents with estate planning and real estate law. 

Contact McMurter & Associates Monday to Friday, 9 a.m. to 5 p.m. at info@mcmurter.com or call 1 800 756 7138 or 905 666 9200 to schedule a consultation.

Disclaimer: This article provides general information about Ontario law and is not a substitute for legal advice. Please speak with a lawyer about your specific circumstances before making decisions about real estate law and estate planning.