- A married spouse with no children takes the whole estate, and a spouse with children takes the whole estate if its net value is no more than the preferential share.
- The preferential share is $350,000 for deaths on or after March 1, 2021, and $200,000 for earlier deaths.
- Above the preferential share, the spouse takes one-half of the rest with one child, or one-third with more than one child.
Losing a spouse is hard enough without wondering what the law gives you when there is no will. In Ontario the answer depends on whether there are children and on how much the estate is worth after debts.
This article explains the preferential share, how the rest is divided with children, and a few situations where the usual rules change.
Who counts as a spouse
For the intestacy 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.
Married spouses who were separated at the time of death do not get the spouse's intestacy entitlements. Spouses count as separated if, before the death, they had lived apart for three years or had a written separation agreement, court order or family arbitration award, and they were still living separate and apart because of the breakdown at death. This rule applies only if that qualifying event happened on or after January 1, 2022.
The preferential share
If the deceased left a spouse and no issue, the spouse takes the whole estate absolutely. If there is a spouse and issue and the net value is no more than the preferential share, the spouse again takes the whole estate.
The preferential share is $350,000 for the estates of people who die on or after March 1, 2021. For deaths before that date it is $200,000. Check the date of death before relying on either figure.
The share is measured against net value, which is the value of the property after paying the charges on it and the debts, funeral expenses and administration expenses. A large gross estate can therefore have a much smaller net value.
What happens above the preferential share
If the net value is more than the preferential share, the spouse first takes the preferential share absolutely. What is left is then divided with the children.
| Surviving family | Division of what is left |
|---|---|
| Spouse and one child | The spouse gets one-half and the child gets the other half. |
| Spouse and more than one child | The spouse gets one-third and the children share the rest. |
A child who died before the deceased but left issue alive at the date of death is counted as living when the spouse's share is calculated. For example, with two children where one has died leaving grandchildren, the spouse still gets one-third.
Wills that do not cover everything, and the equalization choice
Sometimes there is a will that does not dispose of everything. If it gives the spouse nothing, or less than the preferential share, the spouse takes the shortfall from the intestate property. If it gives the spouse more than the preferential share, the usual sections on the preferential share do not apply.
A married surviving spouse on an intestacy must elect either their entitlement under Part II of the Succession Law Reform Act or an equalization payment under section 5 of the Family Law Act. 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 death. A spouse who does not file in time is deemed to have chosen the Succession Law Reform Act entitlement, unless the court orders otherwise. The estate generally cannot be distributed within six months of death without the spouse's written consent or a court order.
What to do next
- Confirm the date of death and whether any will exists.
- Work out the estate's net value, after debts and expenses.
- Find out whether there are children, including adult children, and whether any have died leaving children.
- Ask a lawyer or accountant to compare the intestacy entitlement with equalization before the six-month deadline.
- Know that a spouse usually has the first right to apply to administer the estate when there is no will.
Frequently asked questions
Does the spouse always get the first $350,000?
Only if the death was on or after March 1, 2021 and the spouse is entitled under the Act. Where the net value is more than the preferential share, the spouse first takes the preferential share absolutely. For earlier deaths the amount is $200,000.
What if my spouse and I were separated?
The spouse's intestacy entitlements do not apply if the spouses were separated at the time of death, as the Act defines separation. Your situation may turn on dates and documents, so get legal advice.
Do I inherit as a common-law partner?
No, a common-law spouse does not inherit under the Succession Law Reform Act when there is no will. You may be able to apply to court for support as a dependant, and the application cannot be made later than six months from the grant of letters probate or letters of administration, although the court may allow a late one for undistributed property.
Can I be forced to choose between the estate share and equalization?
A married spouse must elect one or the other. If you do not file in time, you are deemed to have chosen the Succession Law Reform Act entitlement unless the court orders otherwise.
Sources
- Succession Law Reform Act, R.S.O. 1990, c. S.26 (e-Laws) — Ontario e-Laws
- O. Reg. 54/95 (Preferential Share) under the Succession Law Reform Act — Ontario e-Laws
- Family Law Act, R.S.O. 1990, c. F.3 (e-Laws) — Ontario e-Laws
- Ontario.ca – Administering estates — ontario.ca
- Ontario.ca – Apply for probate of an estate — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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