When someone dies without a valid will in Ontario, their estate doesn't simply go to the government or get distributed randomly. Instead, a specific set of rules called "intestate succession" determines exactly who inherits and in what proportions.
Understanding these rules is critical whether you're administering an estate without a will, or considering whether you actually need a will (spoiler: you almost certainly do). This article helps to understand some foundational concepts regarding intestacy, but remember, we can't give any legal advice without knowing the specific facts of your case. Instead, this is meant as a rough guide to common issues. It is not legal advice. Call us or reach out directly if you would like advice about your particular situation.
Intestacy occurs when:
When this happens, Part II of Ontario's Succession Law Reform Act dictates who inherits based on family relationships at the date of death.
Under Ontario law, if you're married or in a common-law relationship at the time of death, your spouse receives a "preferential share" of $350,000 before anyone else gets anything.
Important Clarifications:
Married spouses: This includes legally married spouses of any gender, regardless of how recently the marriage occurred.
Common-law spouses: You qualify if you've been cohabiting for at least three years, or if you have a child together and have been cohabiting in a relationship of some permanence.
Separated spouses: If you're married but separated (not yet divorced), the legal married spouse may still be entitled to the preferential share unless a valid separation agreement waives estate rights. Meanwhile, a common-law partner you're living with has the right to apply for the Certificate of Appointment, creating potential conflicts.
The $350,000 is calculated after:
Scenario 1: Spouse and No Children
The surviving spouse inherits the entire estate. This is straightforward and usually what most people would intend anyway.
Scenario 2: Spouse and One Child
Example: Estate worth $750,000 after debts
Scenario 3: Spouse and Two or More Children
Example: Estate worth $950,000 after debts, with three children
Critical Issue: Children from Different Relationships
These rules make no distinction between:
If you have children from a previous relationship, intestacy rules might distribute your estate in ways you never intended. Your current spouse receives their share, and your children from all relationships share the balance equally - potentially leaving your current spouse with far less than you'd want if you have multiple children.
If there's no spouse (or common-law partner who qualifies), the estate flows "down and out" through your family tree:
First Priority: Children (and Grandchildren)
Example: Three children, but one predeceased, leaving two children of their own
Second Priority: Parents
If you have no children or grandchildren, your parents inherit the entire estate equally. If only one parent survives, that parent receives everything.
Third Priority: Siblings (and Nieces/Nephews)
If you have no surviving children, grandchildren, or parents:
Important Limitation: Representation stops at the niece/nephew level. Great-nieces and great-nephews do NOT inherit if their parent (your niece or nephew) predeceased you.
Example: Three siblings, one predeceased leaving two children
Fourth Priority: Nieces and Nephews Directly
If you have no surviving siblings, all nieces and nephews share equally. Again, their children do NOT inherit if they predecease you.
Fifth Priority: Next of Kin by "Consanguinity"
If none of the above relatives exist, the estate goes to the closest blood relatives determined by counting generations to find a common ancestor:
The Rule: Descendants take before ancestors, and direct line relatives (parents, grandparents) take before collateral relatives (siblings, aunts, uncles, cousins).
Several categories of people you might assume would inherit actually receive nothing under intestacy rules:
Common-Law Partners (in many cases):
Stepchildren:Unless you legally adopted them, stepchildren are not considered your children for intestacy purposes and inherit nothing.
Friends and Chosen Family:No matter how close, friends receive nothing on an intestacy.
Charities:Your favorite causes receive nothing.
Caregivers:The person who cared for you for years receives nothing unless they're a blood relative or spouse.
Former Spouses:If you're divorced, your ex-spouse has no claim. However, if you're only separated (not divorced), this can create complications.
Ontario law treats all children identically for inheritance purposes:
The estate trustee has a positive duty to search for and locate all children, including those born outside marriage, when administering an intestate estate.
Ontario's All Families Are Equal Act (in force January 1, 2017) created new rights for children conceived after a parent's death through assisted reproduction.
Requirements:
Impact on Estate Distribution:
This can significantly delay estate distribution. Consider:
Example: Father dies leaving three children, one of whom predeceased leaving a widow. That widow files notice of intent to conceive a child using stored genetic material.
The law extends beyond children of the deceased to include more distant relatives - a grandchild could be conceived posthumously, affecting the shares of other grandchildren.
Partial intestacy occurs when:
Example: Your will leaves specific gifts totaling $200,000, but your estate is worth $500,000 and has no residue clause. The $300,000 balance passes by intestacy.
Common Trap - Lapsed Gifts:
"I leave my estate to my three children equally." One child predeceases you, leaving children of their own.
Result: The deceased child's share passes by intestacy to your descendants (including your grandchildren), but the distribution might not match your intentions.
A surviving married spouse might be entitled to more under the Family Law Act than under intestacy rules, particularly if:
The spouse has six months from the death to elect to take their entitlement under the Family Law Act instead of under intestacy. This election is irrevocable and requires careful analysis.
Common-law spouses do not have this option - they're limited to their intestacy entitlement unless they can establish a claim through unjust enrichment or other legal doctrines.
Understanding intestacy rules makes one thing clear: relying on default provincial legislation rarely produces the results people actually want for their families.
At Sheard Law, we help Toronto-area families create comprehensive estate plans that reflect their true wishes, not a statutory formula.
Call us at 416-860-9990 or email us to discuss your estate planning needs.
