Under the laws of Ontario, certain rights and benefits are conveyed to a “spouse.” However, there is not a universal definition of “spouse”: whether you qualify for spousal benefits depends on the governing statute. Below is a summary of some of the most common rights and benefits sought by a “spouse” on the death of their partner, and who is eligible to receive those benefits.
Estates Act, RSO 1990, c E.21
Among other things, the Estates Act governs the administrative powers and obligations of estate trustees and the process for probating wills in Ontario.
The deceased’s spouses has priority to administer an estate without a will
In the event a person dies without a will, or the person named in the will as estate trustee refuses to act, 29 of the Estates Act sets out the hierarchy of persons entitled to administer the deceased’s estate. First priority is given to: “the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death.”
It should be noted that, under this definition, a married but separated spouse will have the same priority to apply to act as estate trustee as the deceased’s live-in girlfriend/boyfriend.
Spouses may not have to post a bond
Section 35 of the Estates Act creates a general requirement on all estate trustees to post a bond with the court as part of their probate application. Section 36 of the Estates Act exempts some people from this requirement. In particular, 36(2) exempts “the surviving spouse of the deceased” from having to post a bond where the net value of the estate is less than $200,000 or $350,000 (depending on the deceased’s year of death).[1]
Section 35 does not define “spouse,” so reference should be made to s. 29 of the Estates Act as well as the definition of “spouse” in the Succession Law Reform Act.
Succession Law Reform Act, RSO 1990, c P.8
Among other things, the Succession Law Reform Act (the “SLRA”) governs the creation of valid testamentary documents as well as the distribution and administration of estates in Ontario.
Married spouses receive a “preferential share” of the estate
If a person dies without a will (i.e. “intestate”), the distribution of their estate is governed by Part II of the SLRA (in particular ss. 44-46). For the purpose of Part II of the SLRA, the definition of “spouse” is the same as the definition found at s. 1 of the Family Law Act, namely:
“spouse” means either of two persons who,
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
As a result, married spouses are entitled to inherit the first $200,000 or $350,000 from the net assets of the deceased’s estate (depending on the deceased’s year of death). This is called the “preferential share.”
If there is money left over after the payment of the preferential share, the deceased’s spouse is entitled to receive:
– 100% of the remainder of the residue (i.e. assets remaining after the payment of the estate debts and administration costs) if the deceased died without children or issue;
– 50% of the remainder of the residue if the deceased died with one child; or
– 1/3 of the remainder of the residue if the deceased died with more than one child.
The SLRA was recently updated with the introduction of s. 43.1 to exclude married but separated spouses from inheriting on intestacy. As a result, a married spouse who was living separate and apart from the deceased and:
(i) Had been living separate and apart from the deceased as a result of a breakdown in the marriage for a period of three year immediately before the deceased’s death;
(ii) Entered in a valid separation agreement (as defined under Part IV of the Family Law Act); or
(iii) Was subject to a court order or family arbitration award with respect of their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage
no longer receives a preferential share or any other entitlement to the deceased’s estate on intestacy.
Spouses may receive additional financial support from an estate
Regardless of whether or not a person dies with a will, Part V of the SLRA allows a spouse to apply to court to receive “adequate provision” for their “proper support” from the deceased’s estate. In this way, a spouse can apply to receive more from the estate than what they were gifted under the deceased’s will or would receive under the rules of intestacy.
Part V of the SLRA expands the definition of spouse:
“spouse” has the same meaning as in section 29 of the Family Law Act and in addition includes either of two persons who were married to each other by a marriage that was terminated by divorce.
As a result, while only married spouses have an uncontroverted right to receive a share of the deceased’s estate on intestacy, both married and common law spouses can apply to court to receive “support” from the deceased’s estate (in an amount determined at the hearing of the application).
Health Care Consent Act, 1996, SO 1996, c 2, Sch A
Among other things, the Health Care Consent Act (the “HCCA”) sets out the rules with respect to consent to medical treatment and the treatment of persons lacking in capacity to make such decisions for themselves.
Spouses may make medical decisions for their incapable partner
Where a person is incapable of making medical decisions for themselves, the HCCA sets out who has priority to act as a substitute decision maker.
At 20(1), the incapable person’s spouse is 4th on the list of persons who may give or refuse consent to a medical treatment, behind the incapable person’s attorney or guardian of the person or appointed representative.
“Spouse” is defined at s. 20(7) to mean:
two persons are spouses for the purpose of this section if,
(a) they are married to each other; or
(b) they are living in a conjugal relationship outside marriage and,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under section 53of the Family Law Act.
Similar to the SLRA, the HCCA excludes separated spouses:
20 (8) Two persons are not spouses for the purpose of this section if they are living separate and apart as a result of a breakdown of their relationship.
Substitute Decisions Act, 1992, SO 1992, c 30
Among other things, the Substitute Decisions Act (the “SDA”) governs the creation of valid power of attorney documents and regulates persons acting as a substitute decision maker in respect of some else’s finances or personal care.
The SDA creates a broad definition of spouse:
“spouse” means a person,
(a) to whom the person is married, or
(b) with whom the person is living in a conjugal relationship outside marriage, if the two persons,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act;
The rights provided to spouses under the SDA are also generally extended to “partners,” defined as:
“partner” means … either of two persons who have lived together for at least one year and have a close personal relationship that is of primary importance in both persons’ lives.
Spouses and partners must be notified
The spouse or partner of a person who is, or is alleged to be, incapable of managing property or personal care must be put on notice of any court application where the relief sought is a declaration that their spouse/partner is incapable and/or to appoint a guardian of property or personal care for the incapable person.
Spouses and partners of an incapable person must be notified when the incapable person’s attorney for property resigns. However, notice does not need to be given to separated spouses if they are “living separate and apart as a result of a breakdown of their relationship.”
Spouses may seek to replace the Public Guardian and Trustee as guardian of property
In the event that the Public Guardian and Trustee (the “PGT”) is acting as an incapable person’s statutory guardian of property, the incapable person’s spouse or partner is given the right to apply to replace the PGT in that role.
Receiving compensation does not disqualify a spouse or partner from acting as attorney for personal care
Generally, the SDA prohibits a person who is paid for providing health care to the incapable person from also acting as that person’s attorney or guardian for property or personal care. An exception is made (at ss. 24(2), 46(3) and 57(2)) for the incapable person’s spouse or partner: a spouse or partner is not disqualified from acting as attorney or guardian for personal care simply because they also receive compensation for the caregiving services they provide to the incapable person.
[1] This amount is updated from time to time as it is linked to the value of the preferential share of an estate a spouse would receive on intestacy.
