Intestate Succession Act Ontario: What Part II Says

People often say there is an Intestate Succession Act in Ontario. There is no statute with that name. The intestacy rules sit in Part II of the Succession Law Reform Act (SLRA), and they decide who inherits when a person dies without a valid will.

This article walks through what Part II actually provides, in the order the statute works through it. It is general information, not advice on a particular family. Real estates often raise facts that change the result, so it is worth confirming your situation with a lawyer.

What Part II covers and who counts as a spouse

"Intestate" simply means the person died without a valid will covering the property in question. Part II then sets the order of who takes. It works from the closest family outward: spouse and children first, then parents, siblings, nieces and nephews, and more distant relatives.

The word "spouse" matters a great deal. For Part II, a spouse is a married person, using the meaning in section 1 of the Family Law Act, so an unmarried common-law partner is not a spouse for intestacy. A common-law partner is not left with nothing in every respect, because Part V of the SLRA lets a common-law partner qualify as a dependant for a support claim.

Separation can also end a spouse's rights. Part II spousal entitlements do not apply if the spouses were separated at death, for example after living apart because of marriage breakdown for three years immediately before death, or where there was a valid separation agreement, a court order on the settlement of affairs, or a family arbitration award and they were living separate and apart at death. That rule applies only to events on or after the commencement of the 2021 amendment that created it, so the date of separation can matter.

When there is a spouse

If the deceased left a spouse but no children or other issue, the spouse takes the whole intestate estate. "Issue" means descendants such as children and grandchildren.

If there is a spouse and issue, the spouse first takes the "preferential share". If the net value of the intestate estate is no more than that amount, the spouse takes all of it. Net value is worked out after charges on the property, debts, funeral expenses and administration expenses. The preferential share is $350,000 for deaths on or after March 1, 2021, and was $200,000 for deaths before that date.

Where the estate is worth more, the spouse takes the preferential share and then a fraction of what is left. With one child, the spouse takes one-half of the residue. With more than one child, the spouse takes one-third of the residue, and the rest goes to the issue. If a child died first leaving issue alive at the death, the spouse's fraction is worked out as if that child were living.

When there is no spouse

With no spouse, the estate goes in the order below. A relative in an earlier row shuts out the later rows.

Degrees of kindred are counted up to the nearest common ancestor and then down to the relative, and relatives of the half-blood inherit equally with those of the whole blood in the same degree.

Special situations the statute addresses

• Unborn children: a child or issue conceived before and born alive after the parent's death is treated as if born in the deceased's lifetime, with the right to inherit starting on the day of birth.
• Posthumous conception: a child both conceived and born after the death is treated as a child only if the deceased's spouse gave written notice to the Estate Registrar for Ontario within six months of the death, the child is born by the third anniversary of the death (or a later time set by the Superior Court), and a court declaration of parentage has been made under the Children's Law Reform Act.
• Simultaneous deaths: where people die at the same time, or it is uncertain who survived, each person's property is disposed of as if they had survived the other, and joint tenants or joint account holders are deemed to hold as tenants in common.
• Married spouses without a will may have a choice: the survivor must choose between the Part II entitlement and an equalization claim under the Family Law Act.

On that last point, the election is filed with the Estate Registrar within six months after the first spouse's death, and if none is filed in time the survivor is deemed to have chosen the intestate entitlement unless a court orders otherwise. This is a deadline worth taking seriously and raising with a lawyer early.

What falls outside Part II, and what to do next

Part II divides only the property that forms the estate. Property that passes by right of survivorship, such as jointly owned property, is outside the estate. Plans such as RRSPs can pass by a beneficiary designation instead. So the rules above may apply to less than the whole of what a person owned.

• Confirm whether there is truly no will, including any older or out-of-province wills.
• List the family members in order: spouse, children, parents, siblings, nieces and nephews.
• Check whether the spouse was married to the deceased and whether they were separated under the statutory definition.
• Sort assets into those in the estate and those passing by survivorship or designation.
• Note the six-month dates for a spouse's election and for any dependants' support application.
• Speak with an Ontario estates lawyer before distributing anything.

Frequently asked questions