Ontario's intestacy rules — the laws that distribute your estate when you die without a will — work reasonably well for a specific type of family: one legally married spouse, children who are all from that one marriage, no business interests, no estranged relationships, and no one who needs special protection. For everyone else, the rules frequently produce outcomes that would shock the person who died.
This article isn't a general guide to intestacy distributions — that's covered in this detailed briefing. Instead, it focuses on the situations where intestacy is most likely to fail your family, and why a will is especially critical in those circumstances.
This is the most significant and most common intestacy problem in Ontario. Many people assume that a long-term common-law partner is protected the same way a spouse is. They are not.
To inherit, a common-law partner may have to advance a claim for dependant support under the Succession Law Reform Act, but success isn't guaranteed. Unjust enrichment or constructive trust (i.e. common-law remedies) offer further litigation paths to common law spouses, often for property contributions, but again, the outcome is uncertain.
There is also a separate and underappreciated risk: if the deceased was still legally married to someone else — even a spouse they hadn't seen in a decade — that legal spouse may have priority over the common-law partner entirely. Separation does not end a marriage. Only divorce does. Common-law partners in this situation will find themselves with no intestacy entitlement at all, leaving them to pursue claims through other legal routes such as dependant support or unjust enrichment — expensive and uncertain paths that a will would have made unnecessary.
Intestacy rules apply mechanically by category — spouse, children — without any regard for the relationships involved. This creates predictable problems in blended families.
Consider a common scenario: a person dies leaving a second spouse and three children — two from a first marriage and one with the current spouse. The estate is worth $700,000. Under the intestacy rules, the spouse receives the preferential share ($350,000), and the remaining $350,000 is divided equally among the spouse and the three children.
Whether that outcome is fair depends entirely on circumstances the intestacy rules ignore: How long was the second marriage? Did the children from the first marriage have their own financial means? Did the deceased have any intention of leaving equal shares to children from both relationships? None of this matters to the formula.
The reverse problem also occurs. A person with a new partner and adult children from a long prior marriage may have intended to leave most of the estate to their children — only to have the intestacy rules direct a substantial portion to a new spouse they were with for a relatively short time.
Unless you legally adopted them, step-children you may have helped raise for decades inherit nothing under Ontario's intestacy rules. They are not "children" for this purpose. A person who has been in a child's life since age five, helped pay for their education, attended every school event — that relationship carries no legal weight in the intestacy formula. If you want step-children to benefit from your estate, a will is the only way to make that happen.
Intestacy rules have no mechanism to account for broken relationships. An estranged adult child you haven't spoken to in twenty years inherits the same share as the child who cared for you through illness. A sibling from whom you've been estranged since childhood inherits if you die without a spouse or children. There is no provision for "I would not have wanted this person to receive anything."
Courts are aware of this problem and have no power to fix it under the intestacy rules. Disinheritance is only possible through a will — and even then, dependant support claims may limit how completely you can exclude certain relatives.
Intestacy rules only distribute to family members as legally defined. Causes you cared about, friends you considered closer than family, a neighbour who looked after you for years — none of them have any claim on an intestate estate. This matters more than people realize. Many Canadians have charitable intentions that simply disappear if they die without a will.
Even when intestacy distributes to the right people, it may do so in the wrong way. An adult child with a disability may lose means-tested government benefits if they receive an inheritance outright. A child with addiction issues receiving a large sum at an inopportune time may be harmed rather than helped. A minor child inheriting under intestacy receives their share directly at age 18, with no trustee discretion and no ability to stage the distribution.
A well-drafted will can create a trust that addresses all of these situations — holding funds until a certain age, allowing trustee discretion for distributions, establishing a Henson Trust for beneficiaries with disabilities, or imposing conditions that protect the beneficiary. Intestacy provides none of these tools.
A surviving married spouse has six months from the date of death to elect to take their entitlement under the Family Law Act (equalization of net family property) instead of their intestacy entitlement. In some cases — particularly larger estates — the Family Law Act result is more favourable to the spouse. In others, intestacy provides more. This election is irrevocable and requires careful analysis, often under time pressure while also grieving. It's a complexity that doesn't exist when a will addresses the spouse's entitlement directly.
Intestacy is not a safety net — it's a default that may or may not align with what you would have chosen. If your family situation involves a common-law partner, a blended family, step-children, estranged relatives, charitable intentions, or beneficiaries who need protection, relying on intestacy is a significant risk.
At Sheard Law, John Sheard assists families navigating intestate estates and the disputes they generate, including disputes about who qualifies as a common-law spouse, competing claims between blended family members, and dependant support applications arising where intestacy leaves someone without adequate provision. He also helps clients avoid these situations entirely through estate planning that reflects their actual wishes and family circumstances.
At Sheard Law, we help clients on both sides of intestacy problems — those dealing with an estate that has no will, and those who want to make sure their own estate doesn't create the same problems for their families.
Contact Sheard Law today to schedule a consultation. Call 416-860-9990 or use our online intake form. Let us help you protect what matters most.
This article provides general information about intestacy in Ontario. It is not legal advice. For advice about your specific situation, consult with a qualified family law and estates lawyer.
