Dependant Support Claims When Someone Dies Without a Will in Ontario

When someone dies without a will, the intestacy rules decide who inherits, and they do not take anyone's need into account. A person who relied on the deceased for support can be left with nothing, or with less than they needed.

Part V of the Succession Law Reform Act gives some of these people a way to ask the court for support from the estate. This article explains the basics, including who may qualify as a spouse, the deadline, and how a claim affects the estate trustee. A lawyer can tell you whether a claim is realistic on your facts.

What Part V allows

A dependant may apply to court for support from the estate if the deceased did not make adequate provision for them. This sits alongside the intestacy rules rather than replacing them. The intestacy rules decide who inherits by relationship, while a support claim looks at whether the deceased adequately provided for someone who depended on them.

Whether you count as a dependant, and what amount would be reasonable, depend on your circumstances and your relationship with the deceased. Those are questions for a lawyer rather than a general article.

Married and unmarried partners

For the intestacy rules, a spouse means a person married to the deceased. A common-law spouse does not inherit under the Succession Law Reform Act when there is no will.

For a support claim under Part V, the meaning is wider. Part V uses the Family Law Act s. 29 meaning of spouse. That counts unmarried partners as spouses if they cohabited continuously for at least three years, or were in a relationship of some permanence and are the parents of a child.

If spouses were separated at the time of death, the intestacy entitlements for a spouse do not apply. Spouses count as separated when, before the death, they had lived apart for three years, or had a written separation agreement, a court order or a family arbitration award settling their affairs, and were still living separate and apart because of the breakdown. The rule applies only if that qualifying event happened on or after January 1, 2022. How this affects a support claim is a point to confirm with a lawyer.

A married surviving spouse may also have an additional choice. When a married spouse dies intestate, the survivor must elect either their entitlement under Part II of the Succession Law Reform Act or an equalization payment. The equalization payment is one-half of the difference between the spouses' net family properties, if the deceased's was larger. The election must be filed in the office of the Estate Registrar for Ontario within six months after the spouse's death, and a spouse who does not file in time is deemed to have elected the intestacy entitlement unless the court orders otherwise. If you and your spouse were separated at the time of death, whether this election is still open to you depends on your situation, so it is worth confirming with a lawyer.

The deadline

A dependant's support application cannot be made after six months from the grant of letters probate or letters of administration. The six months runs from the grant, not from the date of death.

There is an exception. The court may allow an application at any time for any part of the estate still undistributed on the date of the application. That is not a safe plan to rely on, since once the estate is distributed there may be nothing left to claim against.

Effect on the estate trustee

Once the personal representative has been served with notice of a dependant's support application, they must not distribute the estate until the court has disposed of it, unless everyone entitled to apply consents or the court orders otherwise.

This can slow the estate down for the other beneficiaries, which is one reason claims can create tension in a family. It also means that a trustee who is served should get advice before paying anyone.

Separately, the estate of a deceased spouse cannot be distributed within six months of death without the surviving spouse's written consent or a court order.

What to do next

Timing matters, because a support application cannot be made after six months from the grant, and a married spouse's election has its own six-month limit running from the date of death. Start by finding out whether a grant has been issued and when.

• Ask the estate trustee or the court whether letters of administration have been granted, and the date.
• Note the six-month limit from that date.
• Gather proof of your relationship, including how long you lived together and any children.
• Collect records showing the support you received and what you depended on.
• If you are a married spouse, ask about the election deadline of six months after death.
• If you are the estate trustee, once you are served with notice of a claim, do not distribute the estate until the court has dealt with it, unless everyone entitled to apply consents or the court orders otherwise.
• Speak to a lawyer promptly about whether a claim fits your facts.

Frequently asked questions