Separated but Not Divorced: Does a Spouse Inherit Without a Will in Ontario?

Many couples live apart for years without ever divorcing. If one of them dies without a will, the other may assume they will still inherit as a spouse. In Ontario, that is not always true, and the answer turns on how long the separation lasted and whether anything was put in writing.

This article explains the separation rule, shows what a spouse would otherwise have received, and walks through two short examples. It is general information, not advice on your own family's situation.

The starting point: a married spouse usually inherits

When a person dies without a valid will, it is called an intestacy, and Ontario's Succession Law Reform Act sets out who receives the estate. The people who can inherit are the deceased's spouse and closest next-of-kin.

For these rules, "spouse" has the same meaning as in section 1 of 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.

When separation cuts off the spouse's rights

The intestacy entitlements for a spouse do not apply if the spouses were separated at the time of death. Being separated here is a defined test, not just a feeling that the marriage was over.

Spouses count as separated if both of these are true:

• Before the death, they had lived apart for three years, or they had a written separation agreement, a court order or a family arbitration award settling their affairs after the marriage broke down.
• They were still living separate and apart because of that breakdown when the death occurred.

There is also a timing limit. The separation rule applies only if that qualifying event happened on or after January 1, 2022. If your situation involves a separation before that date, how this applies depends on your facts, so get advice before assuming either result.

What the spouse would have received

To see what is at stake, it helps to know what a spouse receives when the separation rule does not apply. If there are no children or other descendants, the spouse takes the whole estate.

If there are children, the spouse first takes the preferential share, or the whole estate if its net value is no more than that amount. The preferential share is $350,000 for deaths on or after March 1, 2021, and $200,000 for deaths before that date. It is measured against the net value, which is the property after paying the charges on it, the debts, funeral expenses and administration expenses.

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 worked out.

Two examples

In both examples, assume the person died on or after March 1, 2021 without a will, the net value of the estate is more than $350,000, and there is one adult child. These are illustrations only.

Example one: separated two years, nothing in writing. The couple separated two years before the death. They had no separation agreement, court order or family arbitration award. Two years is less than three, and no written document settled their affairs, so they do not meet the test for being separated. The spouse still inherits. Because the net value is above the preferential share, the spouse takes $350,000 first. With one child, the spouse also takes one-half of what is left after that, and the child takes the other half. The spouse therefore receives the preferential share plus half of the rest.

Example two: a signed agreement after January 1, 2022. The couple signed a written separation agreement after that date settling their affairs after the marriage broke down, and they were still living apart because of that breakdown when the death occurred. That meets both parts of the test, and the agreement date is on or after January 1, 2022. The spouse's intestacy entitlements do not apply. Subject to any other rights the spouse may have, the intestacy rules then distribute the estate equally among the deceased's descendants, here the one child. Whether the separated spouse has any other claim, such as under the Family Law Act, depends on the facts and is worth confirming with a lawyer.

Who inherits instead, and what about common-law partners

When the spouse is shut out, the estate goes down the line of relatives. It goes equally to the deceased's children and other descendants. If there are none, it goes to the parents equally, or to the surviving parent. If there are no spouse, descendants or parents, it goes to surviving brothers and sisters equally.

A separated common-law partner is a different case. A common-law spouse does not inherit on an intestacy at all. However, a dependant may apply to court for support from the estate if the deceased did not make adequate provision for them. For that 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. That application cannot be made after six months from the grant of letters probate or letters of administration, although the court may allow a late application for any part of the estate still undistributed.

What to do next

Whether a separated spouse has any other claim against the estate is a separate question that depends on the facts, and you should get legal advice on it before the estate is distributed. The same applies if the timing of the separation is unclear.

• Confirm the date of death, since the preferential share depends on it.
• Find any separation agreement, court order or family arbitration award, and note its date.
• Work out when the spouses last lived together and whether they were still apart because of the breakdown.
• List the children and other relatives who may inherit if the spouse is excluded.
• Do not distribute the estate until you have confirmed who is entitled.

Frequently asked questions