Should Executor Intestate Common Law in Ontario (2026)? The Decision Tree With Real $450K Numbers

The Part Most People Miss: Ontario Does Not Treat Common-Law Like Married for Inheritance

If you are an executor handling a $450,000 Ontario estate where the deceased lived common-law and left no will, this is the fact that changes everything: Ontario's Succession Law Reform Act does not give common-law partners any share of an intestate estate. Not after 3 years. Not after 20 years. Not ever. For a full breakdown of how Canada taxes estates at death — including deemed disposition, probate by province, and RRSP income tax — see our inheritance tax Canada 2026 guide.

This surprises almost everyone. Ontario recognizes common-law partners for family law property division (after 3 years of cohabitation), for CPP survivor benefits (after 1 year), and for income tax purposes (after 12 months of cohabiting in a conjugal relationship). But for intestate succession — who inherits when there is no will — the SLRA uses the word "spouse" and means only a person who was legally married to the deceased at the time of death.

On a $450,000 estate, this distinction is the difference between the surviving partner receiving $400,000+ (if married) or $0 (if common-law). The decision tree below walks through every branch an executor faces.

Decision Branch 1: What Assets Bypass the Estate Entirely?

Before the executor even applies for a Certificate of Appointment of Estate Trustee (Ontario's probate), certain assets pass directly to the surviving common-law partner — if the designations were set up correctly. These assets never enter the estate, are not subject to Ontario's Estate Administration Tax, and are not distributed under the intestate rules.

The executor's first task: inventory every asset and determine whether it has a beneficiary designation or is held jointly. On a $450,000 estate, the split between estate assets and bypass assets often determines whether the common-law partner gets nothing or gets the majority of the deceased's wealth — without a single court filing.

Decision Branch 2: What Falls Into the Estate — and Who Gets It?

Everything that does not have a beneficiary designation or joint title falls into the estate and is distributed according to the SLRA's intestate rules. For a common-law estate with no legally married spouse, the hierarchy is:

Decision Branch 3: The Dependant's Relief Claim — The Common-Law Partner's Legal Path

Part V of the SLRA provides a separate mechanism: a dependant can apply to the Ontario Superior Court for support from the estate. For this section — and only this section — the SLRA uses a broader definition of "spouse" that includes common-law partners who meet either threshold:

• Cohabited continuously for at least 3 years at the time of death, OR
• In a relationship of some permanence and are the parents of a child together.

If the surviving common-law partner meets either condition, they can file the dependant's relief application. The court then considers:

• The dependant's current and future needs (age, health, earning capacity)
• The standard of living during the relationship
• The size of the estate and the claims of other beneficiaries
• The deceased's obligations to the dependant during their lifetime
• Any agreements between the parties (cohabitation agreements, separation agreements)

Decision Branch 4: The RRSP Problem — $120,000 With No Beneficiary Designation

This is where the numbers get ugly. When an RRSP or RRIF has no named beneficiary, the full value is included as income on the deceased's terminal return under section 146(8.8) of the Income Tax Act. It does not matter that the estate is only $450,000 — the RRSP income stacks on top of whatever the deceased earned before death.

Notice the gap between definitions: the Income Tax Act recognizes common-law partners after 12 months for RRSP rollover purposes, but the SLRA does not recognize them at all for intestate distribution. The beneficiary designation bridges this gap — but only if it was filed with the financial institution before the death.

Decision Branch 5: The Home — Joint Tenancy vs Sole Name

On a $450,000 estate, the family home is often the largest single asset. How it is titled controls everything:

The Full $450,000 Worked Example: Two Possible Outcomes

Same estate, same people, same $450,000 — but the financial outcome for the surviving common-law partner changes by over $300,000 depending on whether beneficiary designations and joint titles were in place.

The gap between Outcome A and Outcome B is $425,000 to the surviving partner. Same couple, same assets, same total value. The only difference is whether beneficiary designations and joint titles were set up while both partners were alive. This is the most expensive form of procrastination in Ontario estate planning.

Decision Branch 6: Federal Benefits the Common-Law Partner Does Receive

Ontario's provincial estate law is harsh on common-law partners, but federal programs use a broader definition. The surviving common-law partner (1+ year cohabitation) is eligible for:

• CPP survivor's pension: Up to 60% of the deceased's calculated CPP for a survivor aged 65+. On the maximum 2026 CPP of $1,507.65/month, that is up to $904.59/month. Application is made directly to Service Canada — the estate trustee does not control this.
• CPP death benefit: A one-time payment of up to $2,500, payable to the estate or to the person who paid funeral expenses.
• OAS Allowance for the Survivor: Income-tested monthly payment for surviving partners aged 60–64 whose combined income is below the threshold.

These federal benefits flow regardless of whether there was a will, regardless of how Ontario's SLRA distributes the estate, and regardless of the dependant's relief outcome. They are often the surviving common-law partner's most reliable income source when an intestate estate distributes to blood relatives. For a deeper look at how to avoid Ontario probate fees, including strategies that protect common-law partners, see our dedicated guide.

Your Next Step Depends on Which Branch Above Matched You

If you are an executor on an intestate common-law estate right now, the decision tree narrows to these immediate actions:

How Ontario Compares: Common-Law Intestate Rights Across Canada

Ontario is one of the most restrictive provinces for common-law intestate succession. Other provinces have modernized their laws to recognize long-term common-law partners:

The US Estate Tax Comparison (Since You Searched "Estate 2026")

Most search results for "estate 2026" focus on the US federal estate tax exemption — recently set at US$15,000,000 per individual under the One Big Beautiful Bill Act, up from the $13.99M 2025 figure. Canada has no equivalent federal estate tax. The comparison matters only if you hold US-situs assets (American real estate, US stocks in a non-registered account) worth over US$60,000, which triggers US estate tax exposure for Canadian residents under the Canada-US tax treaty.

For most Ontario common-law estates in the $450,000 range, the relevant "estate taxes" are entirely Canadian: Ontario's Estate Administration Tax (probate), RRSP/RRIF deemed disposition on the terminal return, and capital gains on non-exempt property. The combined effective rate on a $450,000 estate with a $120,000 RRSP and no surviving married spouse runs roughly 12–15% — $55,000–$68,000 in total costs depending on asset composition and the deceased's other income in the year of death.