Blended family situation in the Province of Ontario, Canada where you need to update your will when you divorce and get into a common law relationship.
- In Ontario, a common law partner is defined as a person who has cohabited with another person in a conjugal relationship either continuously for a period of not less than three years, or in a relationship of some permanence and they are the natural or adoptive parents of a child.
- If you do not have a child, but still wants to be recognized as a common law couple, your behavior should denote conjugal relationship based on the behavior; services to each other; and societal attitude towards marriage and both contemplating marriage will culminate that they are living in a conjugal relationship.
- In Ontario, divorce will revoke any gifts or appointments made to a former spouse and will take effect as if the former spouse had predeceased unless the will expresses an intention to the contrary
- Therefore, any appointment as executor and trustee to the former spouse will be revoked and she or he will be presumed dead. In addition, all of your property will be divided equally among your children from the previous marriage and your common law partner will be left with nothing.
- In Ontario, entering into a common law relationship has no effect on the previous will.
- In Ontario, after January 1, 2022, subsequent marriage does not revoke previous wills.
- The province of Ontario does not generally recognize common law relationships. Common law couples do not possess all the rights and obligations attributed to married couples. One of the stark differences is that of property division at the time of death or divorce, whereas an Ontarian married couple’s Net Family Property is calculated based on the Equalization of payments, whereas this is not allowed to common-law couples. Yet another difference is the property division on intestacy, while a spouse is entitled to a preferred share in the amount of $350,000 from the net estate and thereafter the balance is divided one-half or one-third if you have one child or two or more children respectively.
For the reasons set forth above, a divorced spouse entering into a common law relationship should execute a new will to provide for the common law partner.
If you want to draft wills or trust, please contact Evelyn Sylvester at [email protected] or call 800 642 7204