Adopted Children and Intestacy: Inheritance Rights in Ontario

Families with adopted children often ask a simple question when someone dies without a will: does everyone share equally? The short answer is that Ontario law generally treats an adopted child as the child of the adoptive parent, but there are details that matter.

This article explains how adoption fits into the intestacy rules, what happens to ties with birth family, and the exceptions that can change the result.

The basic rule: adopted children are children

From the date of the adoption order, an adopted child is the child of the adoptive parent. All relationships, including those with relatives, are determined on that basis for all purposes. For intestacy, that means an adopted child steps into the same position as any other child of the adoptive parent.

Parentage is not tied to marriage either. A person is the child of their parents under the Children's Law Reform Act, whether or not the parents were married, and the Succession Law Reform Act also counts relationships traced through a person born outside marriage.

What happens to the link with birth parents

The adoption order works in both directions. The adopted child stops being the child of the former parent, except where that person is the adoptive parent's spouse. In plain words, an adopted child generally does not inherit from a birth parent who dies without a will, and the birth parent's relatives are no longer treated as the child's relatives.

If an adoption involved a step-parent, the exception for the adoptive parent's spouse is the one to look at. Because the facts of each family are different, a lawyer can confirm how the rule applies to yours.

How adopted children share in an intestate estate

Once an adopted child counts as a child, the ordinary intestacy rules apply. These are some of the points that follow.

• If there is a spouse and one child, the spouse gets one-half of what is left after the preferential share and the child gets the other half. With more than one child, the spouse gets one-third and the children share the rest.
• The preferential share is $350,000 for deaths on or after March 1, 2021, and $200,000 for deaths before that date.
• If there is no spouse, the property is distributed equally among the issue.
• If a child died before the intestate, that child's share passes to their own issue, so grandchildren take their deceased parent's share.

That means an adopted child and a child born to the same parent generally take equal shares. If there are no spouse or descendants, the estate goes to the parents equally or to the surviving parent, and then to brothers and sisters, with half-blood relatives inheriting equally with whole-blood relatives of the same degree. Because adoption determines all relationships, family lines are traced through the adoptive family.

Exceptions and traps

• Interests that had indefeasibly vested before the adoption order was made are not affected by the adoption rule.
• The spouse rules only help a married spouse. A common-law spouse does not inherit under the Succession Law Reform Act when there is no will.
• A descendant conceived before the death and born alive after it inherits as if born in the deceased's lifetime.
• A descendant conceived and born after the death inherits only if the conditions in s. 1.1(1) of the Succession Law Reform Act are met.

If a will exists but does not deal with everything, the intestacy rules can still apply to the part it leaves out. Whether the wording of a will includes or excludes an adopted child is a separate question, and a lawyer should review it.

What to do next

• Gather the adoption order or other proof of adoption and the person's birth record.
• Confirm the date of death, because it decides the preferential share.
• Write down the family tree, including spouses, children, grandchildren and any who died before the deceased.
• Check whether any entitlement may have vested before an adoption order.
• Note whether any beneficiary is under 18, since the Office of the Children's Lawyer must be served in that case.
• Ask an Ontario lawyer who has priority to apply to administer the estate and how the shares work out.

Where there is no will, the spouse or common-law partner usually has the first right to apply to administer the estate, followed by close adult relatives.

Frequently asked questions