When someone passes away in Ontario without a will, the distribution of their estate is governed by the Succession Law Reform Act (SLRA). While this law is designed to ensure a fair distribution of assets based on presumed family relationships, it often fails to reflect the complexity of modern families or the personal wishes of the deceased.
At Cactus Law, we believe your legacy should be defined by you, not a government formula. Here’s what you need to know about how Ontario law handles estates without a will, and why creating one is essential.
The Legal Framework: Ontario’s Default Inheritance Rules
The SLRA outlines a strict hierarchy for how an estate is divided when someone dies without a valid will. This process, known as intestate succession, follows a predetermined order that may surprise many families.
1. Legally Married Spouse
- Preferential Share: The first $350,000 (as of March 1, 2021) of the estate automatically goes to the legally married spouse.
- Remainder of the Estate (Residue):
- If there is one child, the spouse receives half of the remaining estate, and the child receives the other half.
- If there are two or more children, the spouse receives one-third of the residue, while the rest is equally divided among the children.
Important: Common-law partners are not recognized as spouses under Ontario’s intestacy laws. Without a will or a dependent’s support claim, they may receive nothing.
2. Children and Descendants
- If no surviving spouse exists, the estate is shared equally among the deceased’s children.
- Per Stirpes Distribution: If a child has passed away but has children of their own (the deceased’s grandchildren), that share is distributed equally among them.
- Adopted Children: Legally adopted children are treated the same as biological children.
- Stepchildren: Generally excluded unless legally adopted.
- Minors: Inheritances for minors are held in trust, typically managed by a court-appointed trustee until they turn 18.
3. Parents
- If no spouse or children survive, the estate passes equally to the deceased’s parents. A single surviving parent inherits the entire estate.
4. Siblings
- If parents are also deceased, the estate is divided among surviving siblings.
- If a sibling has died, their children (nieces and nephews of the deceased) may inherit their parent’s share.
5. Nieces and Nephews
- If no closer relatives exist, the estate is distributed among surviving nieces and nephews.
- Notably, if a niece or nephew has predeceased the individual, their children do not inherit, as representation generally stops at this level.
6. Extended Family
- In the absence of immediate family, the estate goes to the next closest relatives by blood relation—such as aunts, uncles, or cousins—based on degrees of kinship.
7. The Government
- Only when no relatives can be located does the estate revert to the Province of Ontario—a process called escheat.
Relying solely on Ontario’s intestacy laws places your legacy in the hands of a rigid legal framework that may not align with your personal values or relationships. A will is far more than a legal document—it is a proactive expression of your intentions and a critical tool for ensuring your assets are distributed according to your wishes. Whether you wish to provide for a common-law partner, make charitable contributions, or pass specific assets to loved ones, a will gives you full control over these decisions. It also allows you to appoint a trusted individual to manage your estate, rather than leaving that responsibility to a court-appointed trustee. Beyond simplifying estate administration and potentially reducing probate taxes, a well-drafted will can help avoid misunderstandings and minimize the risk of costly legal disputes among family members. At Cactus Law, our experienced estate planning lawyers are committed to helping you craft a personalized and legally enforceable will—one that reflects your intentions and provides peace of mind for both you and your loved ones. Whether your circumstances are straightforward or complex, we’re here to ensure your legacy is protected with clarity and care.