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How Does Marriage Affect Your Estate?
What Every Same-Sex Couple Should Know
Legal marriage is a relatively new development for same-sex couples in Ontario. Even official common law status on
a par with heterosexual couples is fairly recent. As a result, many gays and lesbians simply aren’t familiar with
the legal implications of marriage and the effect it can have on their estate.
If you are in a long-term relationship with a partner of the same sex, there are a number of important things you should know.
Your Will
In Ontario, succession of property is governed by the Succession Law Reform Act (SLRA). The SLRA covers both testate and
intestate succession, that is, cases where a will exists and cases where no will exists.
Generally speaking, when you marry, your will automatically becomes null and void unless the will document indicates
it was made in contemplation of the marriage. Understanding this rule is important since the implications for same-sex
couples may be much more serious than the implications for other couples.
Within the relevant sections of the SLRA, “spouse” is defined as a married partner of the opposite sex.
Same-sex partners do not yet qualify as legal spouses under certain parts of the SLRA, even if the partners are legally
married as defined by other statutes.
Let’s say a straight man marries and his existing will therefore becomes void. Upon his death (assuming no subsequent
will was made) his wife still retains certain rights to his estate by virtue of her legal status as spouse. Without
a will, although the man’s estate may not be bequeathed in quite the manner he may have desired, his wife maintains
a claim to his estate. If there are no children, she inherits the entire estate.
Now let’s say a gay man marries and his existing will becomes void. Upon his death, his partner has no spousal right
to his estate because the SLRA does not yet recognize him as a spouse. By default, the estate is distributed to the
man’s closest relatives – perhaps his parents, children, or siblings.
If the man’s family did not accept or acknowledge his same-sex partner, the partner may receive nothing from
the estate and have no legal recourse. This is, of course, an unacceptable result.
Right now, if a same-sex spouse were locked out of his partner’s estate in this way, he would need to take the
case to court, and ask the court to redefine “spouse” in the applicable section of the SLRA. As you can imagine,
a groundbreaking case such as this would involve a great deal of uncertainty as to the outcome, not to mention expense.
Thus, if you are going to marry your same-sex partner, or have recently done so, it is critical that you revise and
update your will to maintain its enforceability.
Marriage Contracts/ Domestic Contracts
The law is presently in flux and therefore uncertain. One way of putting more certainty in your life when you get
married is for you and your partner to enter into a form of domestic contract, also known as a marriage contract.
This agreement can deal with a variety of issues between you and your partner, including ownership of any assets,
your home and spousal support.
One great thing about marriage contracts is that you get to negotiate the terms of it yourself. Between you and your
partner, you set your own expectations, rights and responsibilities in advance of the marriage. If you should
subsequently separate, there would already be a decision as to how property should be divided and whether support
should be payable by one party to another.
Spousal Support
If you have married your same-sex partner, be aware that he or she may legitimately claim spousal support
should you separate. Same-sex partners bear the same obligations in this respect as heterosexual partners.
If you have further questions about what effect your marriage will have upon your property and estate,
please contact me at (416) 925-6490 or robert@rgcoates.com.
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