Ontario Intestate Succession Rules Explained Step by Step

If you are reading the Succession Law Reform Act to work out who gets what when there is no will, the sections are short but they depend on each other. The key is to go in order: first the spouse, then descendants, then more distant relatives.

This article walks through the steps and gives simple examples. The examples are for illustration only, and real estates often have wrinkles worth checking with a lawyer.

Step 1: Is there a spouse?

For the intestacy rules, spouse has the same meaning as in 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 settling their affairs, and they were still living separate and apart because of the breakdown at death. This rule applies only where that qualifying event happened on or after January 1, 2022. Earlier separations are treated under the older rule, so get advice.

An unmarried partner may still be able to apply to court for support from the estate as a dependant if the deceased did not make adequate provision for them. For this purpose, unmarried partners count as spouses if they cohabited continuously for at least three years, or were in a relationship of some permanence and are the parents of a child.

Step 2: Spouse and descendants

If there is a spouse and no descendants, the spouse takes the whole estate. If there is a spouse and descendants, the first question is the net value, meaning the property after charges on it, debts, funeral expenses and administration expenses.

• If the net value is no more than the preferential share, the spouse takes everything.
• If it is more, the spouse takes the preferential share first.
• The preferential share is $350,000 for deaths on or after March 1, 2021, and $200,000 for deaths before that date.
• Of what is left, the spouse gets one-half if there is one child, or one-third if there is more than one child.

If a child died before the intestate but left descendants alive at the date of death, that child is still 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.

Worked examples

These examples assume a death on or after March 1, 2021 and a net value worked out after debts and expenses.

Work out the net value first, because the preferential share is measured against it. How these steps apply to a particular estate depends on its facts, so it is worth confirming the numbers with a lawyer.

Step 3: When there is no spouse

Subject to any spouse's rights, the property is distributed equally among the descendants. If a child died before the intestate, that child's share passes to their own descendants, and the same rule applies to later generations. If there is no spouse and no descendants, the estate goes to the parents equally, or to the surviving parent.

Moving further out, the order is:

• No spouse, descendants or parent: surviving brothers and sisters equally, with the share of a deceased sibling going equally to that sibling's children.
• No sibling either: nieces and nephews equally, without representation, so the children of a deceased niece or nephew do not take that person's share.
• None of those: next of kin of equal degree of kinship equally, without representation.
• No surviving relatives at all: the property becomes the property of the Crown under the Escheats Act, 2015. A person who later proves a legal claim to the satisfaction of the Public Guardian and Trustee is entitled to receive it, and the Lieutenant Governor in Council may by order grant it to a person with a moral claim on the deceased.

Degrees are counted up from the deceased to the nearest common ancestor and then down to the relative. Half-blood relatives inherit equally with whole-blood relatives of the same degree, so half-siblings share equally with full siblings.

Special cases and what to do next

• Partial intestacy: if a will gives the spouse less than the preferential share, the spouse takes the shortfall from the intestate property. If the will gives more, the preferential share rules do not apply.
• Adoption: from the adoption order, an adopted child is the child of the adoptive parent and stops being the child of the former parent, unless that person is the adoptive parent's spouse. This does not affect property interests that had indefeasibly vested before the adoption order was made.
• Children born outside marriage: parentage is set by the Children's Law Reform Act, not by whether the parents were married.
• Conceived before death, born after: they inherit as if born in the deceased's lifetime. A person conceived and born after the death inherits only if the conditions in s. 1.1(1) are met.
• Married spouse's choice: a surviving spouse must elect between the intestacy entitlement and an equalization payment. The election must be filed with the Estate Registrar for Ontario within six months after the death, and a spouse who misses this is deemed to have chosen the intestacy entitlement unless the court orders otherwise.

Because the equalization choice has a short deadline, a surviving spouse should get advice early. Also gather the date of death, a list of relatives, and the estate's assets and debts before anyone applies to be estate trustee.

Frequently asked questions