Dying without a will in Ontario does not mean the government takes your estate, which is the myth most people have heard. What actually happens is more mundane and, for many families, worse: the province applies a fixed statutory formula that takes no account of your relationships, your intentions, or what anyone needs. The formula is indifferent to the fact that one child cared for you for a decade, that you meant to leave something to a grandchild, or that the person you lived with for twenty years was never legally your spouse. Understanding how an intestacy is distributed makes clear why a will matters.
How Dying Without a Will in Ontario Distributes an Estate
Intestacy is governed by Part II of the Succession Law Reform Act. The starting point depends on who survives.
If you are survived by a spouse and no children or other issue, section 44 gives the spouse the entire estate absolutely. That is the simplest case and the only one where the outcome usually matches expectations.
Where there is a spouse and issue, the spouse first receives what the Act calls the preferential share. Under section 45 and O. Reg. 54/95, the preferential share is $350,000 for the estates of people who die on or after March 1, 2021. If the net value of the estate is not more than that figure, the spouse takes it all. If the estate is worth more, the spouse receives the preferential share first, and the balance is then divided.
The division of that balance is set by section 46. Where there is a spouse and one child, the spouse is entitled to one-half of the residue after payment of the preferential share. Where there is a spouse and more than one child, the spouse receives one-third of the residue. The remainder goes to the children.
The practical consequence catches people off guard. A surviving spouse does not automatically inherit everything. On an estate of any size, a portion goes to the children, including minor children, whose shares are then held for them until they reach the age of majority.
Where There Is No Spouse
Section 47 works down a statutory ladder. The estate goes to the deceased’s issue, shared equally among those of the nearest degree in which there are surviving issue, with the share of a predeceased person passing to their own issue. If there is no spouse and no issue, the estate goes to the parents. If there is no spouse, issue or parent, it is divided equally among the surviving brothers and sisters, with a deceased sibling’s share going to that sibling’s children. If none of those survive, it goes to nephews and nieces equally. Failing all of them, it passes to the next of kin of equal degree of consanguinity.
Only at the very end of that ladder, where no relative can be found at all, does an estate pass to the Crown. That is rare, and it is not what happens to most people who die without a will.
The Gap That Affects Common-Law Partners
This is the single most damaging feature of Ontario’s intestacy rules, and the one people most often do not know.
For the purposes of intestate succession, spouse means a married spouse. A common-law partner, however long the relationship and whatever the household arrangements, does not inherit on an intestacy. Someone who lived with their partner for twenty-five years, raised children with them and shared every expense can receive nothing at all under Part II, while relatives the deceased rarely saw take the estate by operation of the formula.
There may be other avenues. A common-law partner may qualify as a dependant entitled to bring a claim for support against the estate under Part V of the Act, and may have claims arising from joint ownership or in unjust enrichment. But those are contested proceedings, brought while grieving, with legal costs and no certainty, against a default outcome that a simple will would have prevented.
What to Do About It
Make a will. That sentence is the whole answer, and everything else is detail. A straightforward will costs a fraction of what an intestate estate costs a family in delay, administration and conflict.
If you are in a common-law relationship, treat this as urgent rather than eventual. The intestacy rules will not protect your partner, and no length of cohabitation changes that.
Look at your beneficiary designations and jointly held assets at the same time. Registered plans, insurance and joint accounts pass outside the estate, and they sometimes do more work than the will itself. They also go stale: a designation naming a former spouse will generally be honoured as written.
If someone in your family has died without a will, get advice early. Someone must apply to be appointed estate trustee, and the administration of an intestate estate involves requirements, including possible bonding, that do not arise where a will names a trustee.
If you need a will prepared, or you are dealing with an estate where there is none, George Habib, wills and estates lawyer at Habib Legal Counsel, will explain where you stand and what to do next. Visit HabibLC.com or call anytime at 647-648-2164 — George Habib and his firm are ready to help.
George Habib | Habib Legal Counsel | Wills & Estates | 647-648-2164 | Contact us
