- Before any division happens, the law looks at your net estate — the assets that legally pass through your estate rather than by direct designation or right of survivorship.
- The SLRA gives the surviving spouse a preferential share — a set dollar amount they receive off the top, before any other distribution.
- Once the preferential share is satisfied, the residue is divided between the surviving spouse and the children as a group.
When someone dies without a will in Ontario leaving both a surviving spouse and more than one child, the Succession Law Reform Act (SLRA) maps out a distribution formula that many families find surprising — and sometimes frustrating. Understanding intestacy with a spouse and multiple children is essential for anyone who has not yet made estate planning a priority.
This article walks through how the estate is divided, what the "preferential share" means in practice, and why the formula can create real friction for blended families or where children are still minors.
The Starting Point: Your "Net Estate"
Before any division happens, the law looks at your net estate — the assets that legally pass through your estate rather than by direct designation or right of survivorship. Life insurance with a named beneficiary, RRSPs/TFSAs with designated beneficiaries, and jointly owned property held in joint tenancy all pass outside the estate. What remains forms the pot to be divided.
Step One: The Spouse's Preferential Share
The SLRA gives the surviving spouse a preferential share — a set dollar amount they receive off the top, before any other distribution. As of writing, verify the exact current amount with ServiceOntario or an Ontario estate lawyer, since this figure is set by regulation and is subject to change.
If the estate is smaller than the preferential share
If your entire net estate is worth less than the preferential share, your surviving spouse receives everything and your children receive nothing under the intestacy formula. This may or may not reflect what you would have wanted.
If the estate exceeds the preferential share
Whatever remains after the preferential share is paid is called the residue. This is where multiple children enter the picture.
Step Two: Dividing the Residue Among Spouse and Children
Once the preferential share is satisfied, the residue is divided between the surviving spouse and the children as a group. The spouse receives a defined fraction; the children collectively receive the remainder. As of writing, verify the precise fractions with a lawyer, as the SLRA formula can be amended.
How the children's share is split among them
Each child receives an equal share of the children's portion. If you have three children, the children's portion is split three ways equally. Children of the deceased who have already died but left descendants of their own (i.e., your grandchildren) may be entitled to step into their parent's share — this is called representation or the per stirpes principle.
What Happens to a Minor Child's Share?
If a child is under 18, their share cannot simply be handed to the surviving spouse. The inheritance must be held in a court-supervised trust administered by the Office of the Children's Lawyer or another trustee appointed by the court. The surviving spouse does not automatically control these funds.
This is one of the most disruptive consequences of dying without a will when you have young children:
- The surviving spouse may need court approval to access funds for the children's everyday needs
- Annual or periodic reporting to the court may be required
- The children receive their full share at age 18 — a lump sum with no strings attached
A properly drafted will allows you to name a trustee you trust and set conditions on when and how children receive their inheritance.
Complications in Blended Families
If you have children from a prior relationship and a current spouse, the intestacy formula can create genuine conflict. Your current spouse receives the preferential share plus their fraction of the residue; children from a prior relationship receive their fraction of the residue. Neither side controls what the other receives.
Consider a situation where the family home is the primary asset. If it is held as tenants in common, it forms part of the estate. The surviving spouse and children all have an interest in it. Selling the home may require consent from the children's trustee. A simple family home can become a source of years of litigation.
Assets Outside the Estate: A Critical Variable
Remember that the intestacy formula only governs your net estate. Many families find that most of their wealth passes outside the estate entirely:
| Asset type | How it passes |
|---|---|
| RRSP/RRIF with named beneficiary | Directly to beneficiary |
| TFSA with named successor holder or beneficiary | Directly to beneficiary |
| Life insurance with named beneficiary | Directly to beneficiary |
| Joint tenancy property | To surviving co-owner by survivorship |
| Pension plan death benefit | Per pension legislation |
This means your spouse could inherit most of the family wealth through designations while the intestacy formula governs only a small residual estate — or vice versa if designations were never updated after a separation.
The Administration Burden Without a Will
With no will, there is no named executor. The surviving spouse typically applies for a Certificate of Appointment of Estate Trustee Without a Will from the Superior Court. This takes time and costs court fees. The estate trustee must then follow the SLRA formula exactly — there is no discretion to adjust distributions based on individual circumstances or need.
Frequently asked questions
Do all children share equally under intestacy?
Yes, children of the deceased share the children's portion equally. However, if a child predeceased you and had children of their own, those grandchildren may collectively step into their parent's share under the representation rules.
Can the surviving spouse receive more than their share by agreement?
Adult beneficiaries can enter into a private agreement to redistribute an inheritance, but this requires legal advice and proper documentation. It is not possible to override the rules for a minor child's court-supervised trust without a court order.
My spouse and I own everything jointly — does intestacy even apply?
Jointly held property in joint tenancy passes by right of survivorship to the surviving spouse and is not part of the estate. But assets held individually or as tenants in common are subject to the intestacy rules. Many people hold some assets individually even when they think they own "everything jointly."
Will my children receive money as a lump sum at 18?
Under intestacy, yes — a child's trust typically ends at 18 and the full sum is paid out. A will, by contrast, can stagger distributions (for example, at 21, 25, and 30) and give a trustee discretion to release funds for education or health needs before then.
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