What If Two Family Members Die Together Without Wills in Ontario?

Losing two family members in the same accident, fire or illness is devastating. When neither left a will, you may also face a hard legal question: if no one can say who died first, how does the law decide who inherits?

Ontario has a specific rule for deaths at the same time or in uncertain circumstances. This article explains that rule in plain language, how the intestacy order works for each person, and what to sort out first. It is general information, not advice on your family's facts.

The basic survival rule

The Succession Law Reform Act (SLRA) deals with this directly. When two or more people die at the same time, or in circumstances that make it uncertain who survived, the property of each person is disposed of as if he or she had survived the other or others.

In plain terms, each person's estate is worked out separately, as though that person had outlived the other. This prevents the law from guessing which spouse or relative died first, and it generally means one person does not inherit from the other in that situation. How it applies to a particular family depends on the facts, so a lawyer can confirm.

Joint property and accounts

Normally, jointly owned property passing by right of survivorship falls outside the estate. That cannot work if there is no clear survivor. The SLRA says that joint tenants, or joint account holders, who die in these circumstances are each deemed to hold as tenants in common.

This means each person's share is treated as part of that person's own estate rather than passing automatically to the other. Each share is then dealt with under that person's will or, if there is none, under the intestacy rules.

Who inherits from each person without a will

Once you treat each death separately, the normal intestacy order applies to each estate. The order depends on who is alive and who is related. The table summarizes the main steps.

If no one is entitled, the property becomes the property of the Crown and the Escheats Act, 2015 applies. Because the spouse usually cannot take from a spouse who is treated as having outlived them, the children or other relatives of each person often become the ones to look at. Your lawyer can walk through the exact result for your family.

Points that often change the answer

• Common-law partners are not a 'spouse' for intestacy purposes, because the SLRA uses the Family Law Act meaning of married persons.
• Spouses who were separated at death, for example after three years living apart because of marriage breakdown, do not have spousal entitlements under Part II, subject to the in-force rules of that provision.
• A child conceived before the parent's death and born alive afterward counts as a child or issue.
• Degrees of kindred are counted up to the nearest common ancestor and down to the relative, and half-blood relatives inherit equally with whole-blood relatives of the same degree.

A common-law partner or other dependant may still be able to ask a court for support from an estate under Part V of the SLRA, even without an intestacy share. A support application generally must be made within six months after the grant of probate or administration, though a court may allow a late one for the part of the estate not yet distributed.

Insurance, pensions and RRSPs

Not everything passes under the estate rules. When deaths are simultaneous or uncertain, insurance proceeds are paid under sections 215 and 319 of the Insurance Act.

Retirement plans such as RRSPs, RRIFs and pensions can have a named beneficiary, designated by a signed instrument or by a will that expressly refers to the plan. The plan administrator is discharged by paying the person named in the latest valid designation, absent notice of a later one. If the named beneficiary also died, what happens depends on the plan terms, so check the paperwork and ask a lawyer.

What to do next

• Obtain death certificates and any evidence about the circumstances of the deaths.
• List each person's assets separately: real estate, bank accounts, investments, registered plans and insurance.
• Note how each asset is held (sole name, joint, named beneficiary).
• Identify every surviving relative for each person, including children, parents, siblings and any minors.
• Do not sell real property before an estate trustee has authority; Ontario.ca advises getting a certificate of appointment before signing an Agreement of Purchase and Sale.
• Speak to an Ontario estates lawyer early, because two estates may need to be administered side by side.

Frequently asked questions