What happens to my estate if my spouse and I die at the same time in Ontario?

Ontario's Succession Law Reform Act contains rules for commorientes — situations where two people die at the same time or in circumstances where the order of death cannot be determined. Under the Act, if there is insufficient evidence to determine who died first, each person is presumed to have predeceased the other for purposes of distributing their estate. This means each estate is distributed as if the other person did not exist.

In practical terms, if you and your spouse both die in a common accident and your will leaves everything to your spouse with no alternate, your estate would be distributed as if your spouse had died before you — meaning the gift to the spouse fails and the estate passes to the alternate beneficiaries or, if none, under intestacy.

A well-drafted will includes a simultaneous death clause — often requiring a beneficiary to survive the testator by a specific period (commonly 30 days). This ensures that assets are not passed to a beneficiary who dies shortly afterward, potentially triggering double probate and unnecessary tax consequences.

If you do not have a survival clause in your will and one of the identified triggering events occurs, the legal presumption will apply — but the results may not align with your wishes. Reviewing and updating your will to include clear simultaneous death and survival provisions is advisable.