Common-Law Partners in Ontario: Why You Need an Estate Plan for Your Children

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 have 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 now left without either parent or 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.

Naming Someone to Care for Your Children Is Only One Part of the Plan

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. Some important 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 are worth having. If you and your partner don't agree, a lawyer can help you understand your options and work toward a plan that reflects your wishes.

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 there are children from a previous relationship.

This is also an important reason for each parent to have their own properly prepared 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 are no longer able to care for them.

What If Both Parents Die?

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

You may have a parent, sibling, close friend or another family member you would 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.

Consider Kate and Mark.

They never agreed on who they would want to care for their children if they both died. Because they could not decide, they never made a will.

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

If you and your partner do not agree about who should care for your children, that is a reason to seek legal advice, not a reason to put off making a will.

A lawyer can help you understand your options and how your wishes can be documented. For common-law parents, these conversations are an important part of planning for your family's future. You cannot know what the future will bring, but you can make your wishes clear while you are here to make them.

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 common-law clients with estate planning.

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 estate planning.