What Happens if you Die Without a Will?
The Law of Intestacy in Ontario
What happens when someone dies without a valid Will? One would hope that their final wishes be honoured, but if there is no legally valid proof of their intentions, then the estate is considered “intestate.” In Ontario, the administration and distribution of an intestate estate is governed primarily by Part II of the Succession Law Reform Act.
Many of these statutory rules are relatively straightforward, especially in simple family situations. For example, if someone dies leaving a spouse but no children, the surviving spouse generally inherits the entire estate. Conversely, if someone dies leaving both a spouse and children, the spouse is entitled to a “preferential share” of the first $350,000 of the estate, with the remainder divided between the spouse and children in accordance with the legislation.
Importantly, the definition of “spouse” in the context of intestacy specifically excludes divorced spouses, as well as separated spouses in certain circumstances. The principle underlying this exclusion is that a former spouse should generally not inherit where the relationship has effectively ended. However, disputes can arise where the timing or nature of a separation is unclear, sometimes leading to costly litigation between the surviving spouse and other beneficiaries.
Common law spouses are also notably excluded from Ontario’s intestacy regime. As a result, a surviving common law spouse does not automatically inherit under an intestacy, even where the couple may have lived together for decades in a marriage-like relationship. That said, a common law spouse may still bring a claim against the estate for dependant support, with the Court considering factors such as the nature and duration of the relationship, the financial circumstances of the parties, and the needs of the surviving spouse. These claims can unfortunately become highly contentious, particularly in blended family situations involving children from prior relationships.
Where someone dies intestate without a spouse or children, the estate generally passes first to surviving parents, then to siblings, followed by nieces and nephews. Beyond this point, Ontario law applies increasingly remote degrees of blood relationship in determining who is entitled to inherit. In the rare circumstance where no eligible next of kin can be identified, the estate may ultimately pass to the government, or in traditional legal terminology, “escheat to the Crown.”
While Ontario’s intestacy rules attempt to create a fair default distribution scheme, they are ultimately not a substitute for a person’s own wishes. A properly drafted Will remains one of the most important tools for ensuring that your estate is administered according to your intentions and for minimizing uncertainty, delay, and potential conflict among surviving family members.
If you would like assistance preparing a Will or reviewing your Estate Plan, please book your FREE CONSULT with Tonelli Estate Law today.
***This article is for general informational purposes only and does not constitute legal advice***