Does a Spouse Inherit Everything Without a Will in Ontario?

When someone dies in Ontario without a valid will, many surviving spouses assume everything passes to them. Sometimes it does, but often it does not, especially when there are children.

This article explains how the intestacy rules generally work for a spouse, what the numbers look like, and the situations where the answer changes. Your facts matter, so a lawyer can confirm how the rules apply to you.

What an intestacy is

A death without a valid will is called an intestacy, and Ontario's Succession Law Reform Act sets out how the estate is distributed. The people who can inherit are the deceased's spouse and closest next-of-kin.

For these rules, "spouse" has the same meaning as in section 1 of the Family Law Act, which means people who are married to each other. A common-law spouse does not inherit under the Succession Law Reform Act when there is no will.

When the spouse takes everything

• If there is a spouse and no children or other descendants, the spouse takes the whole estate.
• If there is a spouse and children, but the estate's net value is no more than the preferential share, the spouse still takes the whole estate.

Net value means the value of the property after paying the charges on it, the debts, funeral expenses and administration expenses. Funeral and burial expenses and debts are paid before the estate is distributed.

When there are children and a larger estate

If the net value is more than the preferential share, the spouse first takes the preferential share. The preferential share is $350,000 for people who die on or after March 1, 2021, and $200,000 for deaths before that date.

A child who died before the deceased but left descendants alive at the date of death is counted as living when the spouse's share is worked out. For example, with two children where one has died leaving grandchildren, the spouse still gets one-third.

If a child is under 18, special steps apply. The applicant must serve the Office of the Children's Lawyer. A minor's share over $35,000 is paid into court and held until the child turns 18, while a share under $35,000 can be paid to the parent the child lives with, or to the person with lawful custody.

Situations where a spouse gets less or has other choices

• Separated spouses: the spouse's intestacy entitlements do not apply if the spouses were separated at death. Spouses count as separated if they had lived apart for three years, or had a written separation agreement, court order or family arbitration award, and were still living apart because of the breakdown. This applies only where that event happened on or after January 1, 2022.
• Partial intestacy: if a will does not dispose of everything and gives the spouse less than the preferential share, the spouse takes the shortfall from the intestate property. If the will gives more than the preferential share, the usual preferential share rules do not apply.
• Equalization election: a married spouse must choose between the intestacy entitlement and an equalization payment, which is one-half of the difference between the spouses' net family properties if the deceased's was larger. The election must be filed within six months after the death, and a spouse who does not file in time is deemed to have chosen the intestacy entitlement unless the court orders otherwise.

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

A common-law partner may still have options. They may have a priority right to apply for administration of the estate, and they may apply to court for support as a dependant if the deceased did not make adequate provision for them. That application generally cannot be made more than six months after the grant of letters probate or letters of administration, although the court may allow a late application for any part of the estate still undistributed.

What to do next

• Confirm the date of death, since it decides the preferential share amount.
• List the assets, debts and funeral costs to estimate the net value.
• Note whether there are children, including children who died leaving descendants.
• Find out whether you were separated at death and under what circumstances.
• Speak to a lawyer before the six-month election deadline passes.

Keep in mind that the estate trustee is the only person with legal authority to manage or distribute an estate. A bond is generally required when there is no will, but a surviving spouse is an exception if the estate's net value does not exceed the preferential share and an affidavit setting out the estate's debts is filed. How all of this applies depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions