Blended Family and No Will in Ontario: What Stepchildren Get

Second marriages are common, and so are households where one spouse has children from an earlier relationship. If one spouse dies without a will, Ontario does not look at who the family thought of as family. It applies a fixed set of rules based on legal relationships.

Those rules can produce results that surprise blended families. This article explains how the spouse and the deceased's own children share an estate, where stepchildren stand, and what other claims may be open. It is general information, not advice on your situation.

How the intestacy rules divide an estate

When someone dies without a valid will, the Succession Law Reform Act sets who inherits. The answer depends mainly on whether the deceased left a spouse and whether they left children or other descendants, which the Act calls issue.

The preferential share is $350,000 for people who die on or after March 1, 2021, and was $200,000 for earlier deaths. If the net estate is no more than the preferential share and there is a spouse and issue, the spouse takes all of it. Net value is worked out after charges on the property, debts, funeral expenses and administration expenses.

Why this matters for children of an earlier relationship

Picture a parent with two children from a first relationship who remarries and dies without a will. The new spouse takes the preferential share and then a one-third share of what is left, and the children share the remainder. The children are not cut out, but the spouse takes a large first slice, and in a small or modest estate the spouse may take all of it.

The bigger risk is what happens next. Whatever the spouse receives becomes the spouse's own property. If the spouse later dies, it passes under the spouse's own will or intestacy, and nothing in the first spouse's estate guarantees it ends up with the first spouse's children. That is a general consequence of how ownership works, and it is worth raising with a lawyer if you are concerned.

• A child of the deceased who died before the parent leaves their own children to take that share by representation.
• If a child died first leaving issue alive at the death, the spouse's fraction is worked out as if that child were living.
• A child conceived before the death and born alive afterward counts as a child, with the right to inherit starting on the day of birth.

Where stepchildren fit

The order of heirs on an intestacy runs through the spouse, issue, parents, siblings, nieces and nephews, and then more distant next of kin. Stepchildren are not named anywhere in that order. If the deceased left a spouse and no children of their own, the spouse takes everything, and the stepchildren take nothing from the estate as of right.

Stepchildren may have another route. Under Part V of the Act, a court may order support from an estate if the deceased did not make adequate provision for the proper support of a dependant, whether or not there was a will. A dependant can include a child, and for this purpose a child includes a person the deceased showed a settled intention to treat as a child. Whether a particular stepchild qualifies depends on the facts, including whether the deceased was providing or obliged to provide support immediately before death.

Courts look at things such as the dependant's assets and means and their accustomed standard of living. Need is assessed as of the hearing date. An application generally cannot be made more than six months after the grant of probate or letters of administration, although a court may allow a late application for any part of the estate still undistributed.

Other rules that change the picture

• Not legally married: a common-law partner is not a spouse for intestacy, and the Family Law Act definition covers married people and those who entered a void or voidable marriage in good faith. A common-law partner may still claim dependants' support.
• Separated at death: spousal entitlements under the intestacy rules do not apply if the spouses were separated as the Act defines it, such as living apart because of marriage breakdown for three years before death. The rule applies only to separations on or after the date the amending law came into force.
• The spouse's choice: where there is no will, the surviving spouse must choose between the intestacy entitlement and the equalization entitlement under the Family Law Act. The election is filed within six months of the death, and if none is filed the spouse is deemed to take the intestacy entitlement unless a court orders otherwise.
• Jointly owned property: property that passes by right of survivorship falls outside the estate. A home or account held jointly with the new spouse may go to the spouse regardless of the intestacy shares.
• The matrimonial home: a spouse who occupied the home at the death may stay rent-free for 60 days.

The equalization choice can shift results in either direction depending on each spouse's net family property, so a spouse and any affected children benefit from understanding the numbers before the six-month window closes.

Minor children, conflicts and who runs the estate

Where a child is a beneficiary on an intestacy, the Office of the Children's Lawyer must be served on the application. With no will, the child receives their share at 18, and a child's inheritance over $35,000 is paid into court and held by the Accountant of the Superior Court of Justice, or by a court-appointed guardian of property, rather than by the estate trustee.

On a no-will estate, the deceased's spouse or common-law partner usually has the first right to apply to administer the estate, and if they do not, a close adult relative such as a child, parent, grandchild, sibling, niece or nephew can apply, with the court choosing the most suitable. The court may commit administration to the spouse, the next of kin, or both, as it sees best. In a blended family this can create tension, because the person with priority may not be the person the children would choose.

An administrator generally gives a bond, though a judge can reduce or dispense with it, and it is generally not required for a small estate unless a beneficiary is a minor. Rules of court also allow a person to object to a certificate being issued, ask for directions, or seek revocation of a certificate.

What to do next

• Note the date of death, since the six-month deadlines for the equalization election and for a support application run from the death or the grant.
• List who survived: a married spouse, the deceased's own children, stepchildren, parents and siblings.
• Gather information on assets, noting which are jointly owned or have a named beneficiary.
• Ontario.ca advises getting a certificate of appointment before anyone enters into an Agreement of Purchase and Sale for the deceased's real property.
• Speak with an Ontario estates lawyer before signing renunciations or consents, which are required from certain people when there is no will.

Frequently asked questions