Can a Child Born After a Parent Dies Inherit in Ontario?

If your partner died while you were pregnant, you may be facing grief and a very practical question at once: will the baby be treated as a child of the person who died? In Ontario the answer, for a child conceived before the death, is generally yes.

This article explains how the Succession Law Reform Act treats a child born after a parent's death when there is no will, how that affects a spouse's share, and what changes if the partners were not married. It is general information, and the details of an estate are worth confirming with a lawyer.

A child conceived before death and born afterward

The Act defines child and issue to include a child conceived before the parent's death and born alive afterward. Its inheritance rules then treat such descendants as if they had been born in the deceased's lifetime, with the right to inherit starting on the day of birth.

In practice, this means the unborn child is counted among the deceased's issue when working out who takes. The word alive matters: the rule covers a child born alive, so the position is settled only once the birth has occurred.

How the child's presence changes the shares

Whether there is a surviving spouse is the main factor. The table shows how the child fits in once counted as issue.

Net value means the value after charges on the property, debts, funeral expenses and administration expenses. Property that passes by right of survivorship, such as a jointly owned home, falls outside the estate.

If you and your partner were not married

A common-law partner is not a spouse for the intestacy rules, because spouse in that part of the Act has the Family Law Act meaning, which covers married persons. A partner who was never married to the deceased therefore does not inherit as a spouse. The child, however, is still the deceased's issue and takes under the rules above.

A common-law partner may still apply for dependants' support from the estate, whether or not there is a will, if the deceased did not make adequate provision for proper support. A support application generally cannot be made more than six months after the grant of letters probate or letters of administration, though the court may allow a late application for any part of the estate still undistributed.

Spousal entitlements also do not apply if the spouses were separated at death, as the Act defines separation. If that might describe your situation, get advice early.

A child conceived after the death

A different rule applies where a child is both conceived and born after the parent's death. That child is treated as a child of the deceased only if every one of these conditions is met:

• The deceased's spouse gave written notice to the Estate Registrar for Ontario no later than six months after the death.
• The child is born no later than the third anniversary of the death, or a later time set by the Superior Court.
• A court declaration of parentage was made under section 12 of the Children's Law Reform Act.

The six-month notice deadline is short. Anyone in this position should speak with a lawyer promptly.

Court steps and protection for a minor

When a child is a beneficiary, the court process includes extra protection. The applicant for a certificate of appointment must serve every person entitled to share in the estate; for a minor, that means a parent or guardian and the Children's Lawyer, and for unborn or unascertained beneficiaries, also the Children's Lawyer. With no will, the child receives their share at 18, and a child's inheritance over $35,000 is paid into court and held by the Accountant of the Superior Court of Justice, or by a court-appointed guardian of property, rather than by the estate trustee.

Ontario.ca advises obtaining the certificate of appointment before anyone enters into an agreement of purchase and sale for the deceased's real property. That can affect timing if a home is involved.

What to do next

• Gather the death certificate, marriage certificate if any, and a list of the deceased's assets and debts.
• Confirm whether a will exists, since these rules apply only without one.
• Keep medical records that show the date of conception or pregnancy, in case they are needed.
• Note which assets were joint or had a named beneficiary, because they may pass outside the estate.
• Diarize the six-month marks for any support application or written notice to the Estate Registrar.
• Speak with an Ontario estates lawyer before applying to administer the estate or agreeing to distribute anything.

Frequently asked questions