Dying Intestate in Ontario: Who Inherits Under the Rules

When a person dies without a valid will, they are said to have died intestate. In Ontario, the Succession Law Reform Act (SLRA) contains a set of default inheritance rules that determine who receives the estate and in what proportions. These rules apply automatically — there is no court hearing required to decide them, and they cannot be altered after death.

Intestate succession in Ontario may seem like a reasonable backstop, but it rarely reflects what the deceased person would actually have wanted. It can produce outcomes that surprise — and sometimes devastate — surviving family members. Understanding the rules is important both for those dealing with an intestate estate and for anyone who has been meaning to write a will.

The Starting Point: Is There a Surviving Spouse?

Ontario's intestacy rules treat the surviving spouse (including a married same-sex spouse) as the primary beneficiary. Common-law partners do not inherit under the intestacy rules. This is one of the most consequential distinctions in Ontario estate law — a couple who have lived together for decades but never married may find that the surviving partner inherits nothing from the deceased's estate under the intestacy rules. They would need to rely on a dependant's relief claim or a resulting trust argument instead, both of which involve litigation.

For married spouses, the SLRA provides what is called a preferential share — a defined dollar amount that the spouse receives off the top before anyone else. As of writing, this amount is set by regulation and has been updated over time; always verify the current figure with a lawyer, as it is subject to change. If the entire estate is worth less than the preferential share, the spouse takes everything.

If the estate exceeds the preferential share, the distribution of the remainder depends on whether the deceased left surviving children.

Spouse and Children Surviving

If there is a surviving spouse and children, the spouse receives:

1. The preferential share (described above).
2. A fraction of the remainder of the estate.

The SLRA specifies the fraction based on whether there is one child or more than one. As of writing, if there is one child surviving, the spouse and child each receive half of the remainder. If there is more than one child, the spouse receives one-third and the children share the remaining two-thirds equally. Verify the current fractions with a lawyer, as these are statutory defaults that can be amended.

Important: children of any age inherit equally, including adult children. A child who predeceases the parent is generally represented by their own children (the deceased's grandchildren) under a principle called representation.

No Spouse, Children Only

If there is no surviving spouse, the entire estate passes to the children in equal shares. Again, if a child predeceased the parent and left their own children, those grandchildren divide the deceased child's share.

No Spouse and No Children

If there is no surviving spouse and no surviving children or grandchildren, the SLRA distributes the estate up the family tree:

• First to the parents of the deceased (equally, or entirely to the surviving parent if one has died).
• If no parents survive, to siblings of the deceased (equally, with representation for deceased siblings' children).
• If no siblings or their descendants survive, to nephews and nieces (the children of deceased siblings).
• Further along, to other next of kin.

If no living relatives can be found at all, the estate escheats to the Crown — it goes to the Ontario government. This is rare, but it does happen.

Why the Rules May Not Match Your Wishes

The intestacy scheme is a one-size-fits-all default. Here are some common ways it diverges from what most people actually want:

Common-law partners are excluded

As noted above, a common-law spouse — even a long-term partner — does not automatically inherit under Ontario's intestacy rules. The law recognizes only married spouses. For unmarried couples, dying without a will is a serious risk.

Children inherit at age 18 without conditions

Under a will, a parent can direct that a child's inheritance be held in trust until a certain age — say, 25 — giving the child time to mature before receiving a large sum. Under intestacy, an 18-year-old receives their full share unconditionally. For parents of young children, this alone is a compelling reason to have a will.

No provision for blended families

The intestacy rules do not distinguish between biological children and stepchildren. Stepchildren do not inherit under intestacy unless legally adopted. And in a blended family, the preferential share paid to the surviving spouse may leave the deceased's children from a prior relationship with less than was intended.

No charitable gifts

Intestacy leaves nothing to charities, friends, colleagues, or anyone outside the family tree. If you wanted to leave a bequest to a cause you care about, only a will can accomplish that.

No control over who administers the estate

Without a will, the court appoints an estate trustee. Your preferred person — a trusted friend, your accountant, your eldest child — has no automatic priority beyond what family members may apply for under the rules.

Joint owners and beneficiary designations still apply

It is worth noting that intestacy rules only govern assets that form part of the estate. Assets held in joint tenancy, or with a named beneficiary (like an RRSP or life insurance), pass outside the estate regardless of whether there is a will or not. The intestacy rules only govern what is left over after those transfers occur.

How to Avoid Dying Intestate

The solution is straightforward: make a valid will. A will lets you:

• Designate who inherits and in what proportion
• Create trusts for children so they do not receive large sums at 18
• Protect a common-law partner
• Name an estate trustee you trust
• Make charitable bequests
• Plan around your specific family situation

A will also lets you name a guardian for minor children — one of the most important decisions a parent can make. The intestacy rules say nothing about guardianship.

Frequently asked questions