If you die without a valid will, you are said to die "intestate." In that case, you do not decide who inherits your estate — Ontario's Succession Law Reform Act does, according to a fixed formula. Many people are surprised by how that formula works, and by who it leaves out, which is one of the strongest reasons to make a will.
The preferential share for a spouse
When there is a surviving married spouse, the law gives that spouse a "preferential share" — a set dollar amount off the top of the estate — before the rest is divided. The government sets and updates the preferential-share figure from time to time, so the exact amount depends on the current regulation and the date of death. Anyone relying on it should verify the current figure.
How the rest is divided
After the preferential share, the division depends on the family:
- If there is a spouse and one child, the remainder is generally shared between the spouse and that child.
- If there is a spouse and more than one child, the spouse receives a portion and the children share the balance, according to the statutory formula.
- If there is a spouse and no children, the spouse typically receives the whole estate.
- If there is no spouse, the estate passes to children, and if there are none, to other relatives — parents, then siblings, then more distant relatives — in a set order.
Common-law partners are left out
A critical point: the intestacy rules apply to married spouses. A common-law partner, no matter how long the relationship, does not automatically inherit on an intestacy in Ontario. A surviving common-law partner may have to pursue other claims — for example, dependant support or unjust enrichment — rather than simply inheriting. This is one of the most important gaps a will can close.
Other consequences of intestacy
- You cannot choose your estate trustee (executor); someone must apply to be appointed.
- You cannot name a guardian for minor children in a will.
- Gifts to friends, charities, or specific people simply cannot happen, because the formula does not allow for them.
For education only. The exact shares depend on your family situation and the current preferential-share figure — and making a will lets you decide instead of the statute.
This article is general information for educational purposes only and is not legal advice. For advice on your situation, book a consultation.