Partial Intestacy in Ontario: When a Will Doesn't Cover Everything

Sometimes a person leaves a will, but it does not deal with everything they owned. A gift may fail, or the will may have no clause saying who gets whatever is left over. The part the will does not cover is called a partial intestacy.

This article explains how that leftover property is generally handled in Ontario, with a focus on the surviving spouse's preferential share, how the rest is divided, and who may be left out. Your facts matter, so a lawyer can confirm how this applies to a particular estate.

What a partial intestacy is

When a person dies without a valid will, it is called an intestacy, and Ontario's Succession Law Reform Act sets out how the estate is distributed. When there is a will that does not dispose of everything, the property outside the will is dealt with under those same rules.

On an intestacy, the people who can inherit are the deceased's spouse and closest next-of-kin. The will still governs the property it does cover. The intestacy rules apply only to what is left.

The spouse's preferential share

If the will gives the spouse nothing, or less than the preferential share, the spouse takes the shortfall from the intestate property. If the will gives the spouse more than the preferential share, the usual spouse rules in s. 45(1) and (2) do not apply.

The preferential share is $350,000 for the estates of people who die on or after March 1, 2021. For deaths before March 1, 2021, it is $200,000. Check the date of death before relying on either figure.

The preferential 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.

How the rest is divided

If there is a spouse and no descendants, the spouse takes the whole estate. With a spouse and descendants, the spouse takes the whole estate if its net value is no more than the preferential share. If the net value is more, the spouse first takes the preferential share.

What is left after the preferential share is then divided as follows.

• 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 descendants alive at the date of death is counted as living when the spouse's share is calculated.

Subject to the spouse's rights, the property is distributed equally among the deceased's descendants. If a child died first, that child's share passes to their own children, and the same rule applies to later generations.

When there is no spouse, or the spouse is excluded

Half-blood relatives inherit equally with whole-blood relatives of the same degree, so half-siblings share equally with full siblings.

A spouse who was separated from the deceased at the time of death has no intestate entitlement. Spouses count as separated if they had lived apart for three years, or had a written separation agreement, court order or family arbitration award, and 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.

If there is no spouse, descendant, parent, sibling, niece, nephew or next of kin, the property becomes the Crown's 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.

Common-law partners and the spouse's election

For these rules, a spouse means a person married to the deceased. A common-law spouse does not inherit under the Succession Law Reform Act when there is no will.

A common-law partner may still be a dependant. A dependant may apply to court for support if the deceased did not make adequate provision for them. Unmarried partners count if they cohabited continuously for at least three years, or were in a relationship of some permanence and are the parents of a child. The application cannot be made after six months from the grant of letters probate or letters of administration. The court may allow a late application for any part of the estate still undistributed.

A married surviving spouse must elect between the Succession Law Reform Act entitlement and an equalization payment. The election must be filed within six months after the death, and 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 details of how this fits with a will are worth confirming with a lawyer.

What to do next

• Get a copy of the will and list all property to see what it does not cover.
• Confirm the date of death, since it decides which preferential share applies.
• Note the date of any grant, because the dependant support deadline runs from it.
• Ask a lawyer about the election deadline if you are a married surviving spouse.
• Gather information about debts and funeral costs, which are paid before distribution.

Because a partial intestacy mixes the will with the statutory rules, a lawyer can help you work out who is entitled to what.

Frequently asked questions