When someone dies without a Will, which family members are eligible to receive inheritance, and how much they can receive are frequently asked questions. When a person dies without a valid will in Ontario, their estate is distributed according to the Succession Law Reform Act, not personal wishes or informal family agreements. This is known as dying intestate. Ontario law sets out a strict order of entitlement to inherit, the amount each eligible family member receives, and who has the right to apply to administer the estate. Understanding these rules is critical, as intestacy can significantly affect spouses, children, and other relatives depending on the family structure and the value of the estate. I will explain the No Will inheritance rules in Ontario in the post.
The spouse would receive the lion’s share of the estate.
What qualifies as a “spouse” in this regard? A spouse must be married, and there can be only one spouse. If the deceased had prior marriages, the divorced or separated spouses are not entitled to inherit. The marriage does not need to take place in Canada – it can happen in any country, as long as the process is legal.
However, any spouse who is living apart from the deceased due to a marriage breakdown is not eligible to receive an inheritance. So, if the deceased and the spouse have different addresses on their driver’s licenses and bills, that is not good for getting an inheritance. The law considers living together a very important factor in determining relationship status.
In terms of the amount of estate they receive, the married spouse would first receive a set sum of money, called a preferential share. This amount changes from time to time based on the law, and is currently $350,000. If the estate has more than this and the deceased has only 1 child, the spouse and child would split the rest evenly. If there are more than 1 child, the spouse would take 1/3 of what’s left, and all the children would split the remaining 2/3 evenly.
Common law spouses (CLP) are not eligible to receive an inheritance (without a Will).
Under Ontario’s Succession Law Reform Act, a common-law spouse is not automatically entitled to inherit if their partner dies without a valid will. This is true regardless of how long the couple lived together. While the CLP can apply to become an executor to manage the estate, they cannot receive inheritance as beneficiaries. So, there is really no good reason for the CLP to serve as the executor unless there are no other suitable candidates (e.g., all beneficiaries are foreign residents). The CLP would need all other beneficiaries to sign a consent before they can take on this role. The CLP would need to buy the expensive bond insurance (approx. costing 5% of the estate).
Learn more about Does a Common Law Spouse Automatically Inherit in Ontario When Their Partner Dies.
Children of the deceased must be related by blood or adoption.
This includes children born inside marriage and children born out of wedlock. Of course, it also includes children born outside common-law relationships. In those cases, the CLP would still not be entitled to inheritance, but their children can receive their share.
Stepchildren are excluded from receiving inheritance (without a Will). So, if the deceased’s spouse had children from a previous marriage, the deceased must go through the formal legal process of adopting them before they can be recognized as the deceased’s children, who are then eligible to receive inheritance.
If the deceased had a spouse and/or children (and no Will), then it stops there. No other relatives, including the deceased’s parents, may claim the estate. This is often a shock to most people.
Only when the deceased does NOT have a spouse or children does it go to parents, siblings, or next of kin.
If no parents, then their brothers or sisters. If no siblings, then nieces or nephews. If none of those, then the next of kin. The closest relationship we ever had was with great-nieces and nephews, as the only living relatives, who inherited the entire estate of their great aunt.
If you do not agree with the above beneficiaries or the amount of money they are receiving, you should write a Will.
If you do agree, you should still write a Will. This is because the Court can never determine, with 100% certainty, who your latest spouse is, all your children, your next of kin, etc. If the Court misses a beneficiary, they will need to compensate those people somehow. In those cases, the Court would require the executor to buy a bond insurance costing 5% of the estate. So, the insurance company would compensate the missed beneficiary instead of them. Even for the sole reason of avoiding bond insurance, you should get a valid Will done in your lifetime.
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