Intestate succession is the statutory framework that decides how Ontario distributes a deceased person’s property when no valid will exists. Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA) sets the rules and creates a strict order of inheritance that begins with a surviving married spouse, then issue (children and grandchildren), then parents, brothers and sisters, nephews and nieces, and other blood relatives. When no qualifying relatives exist, the property goes to the Crown under the Escheats Act, 2015.
The SLRA replaces personal wishes with fixed rules. When a married spouse and children survive the deceased, the spouse first receives a preferential share of $350,000 (for deaths on or after March 1, 2021) before the rest gets divided. Common law partners do not inherit automatically under Part II, although they may apply for dependent support under Part V. Separated spouses lose their intestacy rights when section 43.1 of the SLRA applies.
Intestate succession often produces results that the deceased would not have chosen. Drafting a valid will protects your family and lets you decide who inherits, who acts as estate trustee, and how your property gets divided. An experienced wills and estates lawyer in Ontario can guide you through estate planning and help you avoid the limitations of intestacy.
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What Is Intestate Succession in Ontario?
Intestate succession is the legal process that distributes a deceased person’s property under Part II of the Succession Law Reform Act when the deceased leaves no valid will. The Act sets out a fixed hierarchy of beneficiaries based on family relationships, and the estate trustee follows these statutory rules regardless of what the deceased may have said or written informally. The Superior Court of Justice appoints the estate trustee through a Certificate of Appointment of Estate Trustee Without a Will, and the trustee then collects assets, pays debts, and distributes the remaining property as the SLRA requires.
Ontario applies the SLRA in three core situations. The first is when the deceased never made a will at all. The second is when a court declares the will invalid because it failed to meet the formal signing and witnessing requirements under section 4 of the SLRA. The third is when the will fails to deal with all property of the deceased, which creates a partial intestacy for the unaddressed property.
How Common Is Dying Without a Will in Canada?
Recent surveys reveal that a large portion of Canadians lack a will. A 2024 Ipsos survey found that only 15% of Canadians have a complete estate plan. A separate Narrative Research survey from May 2024 reported that 53% of Canadian adults do not have a will, while only 43% do. Among Gen Z respondents, 62% have no planning documents in place. These numbers mean that intestate succession affects a significant share of estates that pass through Ontario courts each year.
“One may assume who have lost a spouse without a will assume the survivor inherits everything. The reality under the SLRA is more complicated, and that surprise often comes at the worst possible time.”
Demet Altunbulakli – Insight Law Professional Corporation, Wills and Estates Practice
Which Laws Govern Intestate Succession in Ontario?
Several Ontario and federal statutes interact when someone dies without a will. The list below sets out the main laws you should know.
- Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA). Part II of the SLRA contains the core intestacy rules in sections 44 through 47. Part V allows dependants to apply for support from the estate.
- O. Reg. 54/95. This regulation sets the preferential share at $350,000 for deaths on or after March 1, 2021, and at $200,000 for deaths before that date.
- Family Law Act, R.S.O. 1990, c. F.3 (FLA). Section 6 of the FLA gives a married surviving spouse the option to elect an equalization payment instead of taking under the SLRA. Section 1 supplies the definition of “spouse” that the SLRA adopts for Part II.
- Estates Act, R.S.O. 1990, c. E.21. This Act governs the process for applying to court for a Certificate of Appointment of Estate Trustee Without a Will.
- Estate Administration Tax Act, 1998, S.O. 1998, c. 34, Schedule. This statute sets the probate tax that estate trustees pay when applying for the Certificate of Appointment.
- Escheats Act, 2015, S.O. 2015, c. 38, Sched. 4. Under this Act, property passes to the Crown when no qualifying relatives exist.
- Children’s Law Reform Act, R.S.O. 1990, c. C.12. This Act establishes parentage rules that affect who counts as a child or descendant for intestacy purposes.
- All Families Are Equal Act, S.O. 2016, c. 23. This Act modernized parentage rules in Ontario and updated the SLRA to recognize all parents and children equally, including those born through assisted reproduction.
Federal law also matters. The Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) governs the deemed disposition of capital property at death and the rollover for property left to a spouse or spousal trust. Estate trustees must obtain a clearance certificate from the Canada Revenue Agency before final distribution.
How Does the SLRA Distribute an Intestate Estate?
Sections 44, 45, 46, and 47 of the SLRA set out the distribution scheme. Each scenario below explains who inherits and how much. The estate trustee applies these rules in order, starting with a surviving spouse and issue, then moving outward to more distant relatives.
Scenario 1. Spouse and No Issue (Section 44)
When the deceased leaves a married spouse but no descendants, the spouse receives the entire estate. Issue here means children, grandchildren, great grandchildren, and so on. The rule applies regardless of estate value.
Scenario 2. Spouse and Issue Where the Estate Equals or Falls Below $350,000 (Section 45(1))
When the estate’s net value does not exceed the preferential share, the spouse takes the entire estate absolutely. Net value means the estate’s worth after debts, funeral costs, and administration expenses. Issue receive nothing in this scenario.
Scenario 3. Spouse and One Child Where the Estate Exceeds $350,000 (Sections 45(2) and 46(1))
The spouse first receives the preferential share of $350,000. The remaining property gets divided equally between the spouse and the child. For example, an estate worth $500,000 leaves $150,000 after the preferential share. The spouse takes another $75,000 and the child takes $75,000. The spouse ends up with $425,000 and the child with $75,000.
Scenario 4. Spouse and More Than One Child Where the Estate Exceeds $350,000 (Sections 45(2) and 46(2))
The spouse first receives the preferential share of $350,000. The spouse then takes one third of the remaining estate, and the children share two thirds equally. For an estate of $950,000, the remainder after the preferential share is $600,000. The spouse takes $200,000 of that residue. If the deceased left two children, each takes $200,000 of the $400,000 children’s share. The spouse ends up with $550,000 in total.
Scenario 5. Issue Only, No Surviving Spouse (Section 47(1) and (2))
When the deceased leaves issue but no spouse, the property goes to the issue equally at the nearest degree where issue survive. Section 47(2) applies representation, which means descendants of a predeceased child step into the child’s share. For example, if one of three children died before the deceased and left two grandchildren, those two grandchildren divide the deceased child’s one third share equally.
Scenario 6. No Spouse and No Issue (Section 47(3))
When the deceased leaves no spouse and no issue, the property passes equally to the deceased’s parents. If only one parent survives, that parent inherits the entire estate.
Scenario 7. No Spouse, Issue, or Parent (Section 47(4))
The property then passes to the deceased’s brothers and sisters equally. If a sibling predeceased the intestate but left children, those children take the predeceased sibling’s share equally.
Scenario 8. No Spouse, Issue, Parent, or Sibling (Section 47(5))
The property goes to surviving nephews and nieces equally. The Ontario Court of Appeal confirmed in Farmer Estate v. Karabin Estate that this section does not extend to grandnieces or grandnephews. Once the search reaches this level, only direct nephews and nieces qualify.
Scenario 9. Distant Next of Kin (Section 47(6) and (8))
When no spouse, issue, parent, sibling, nephew, or niece survives, the property passes to the next of kin of equal degree of consanguinity to the deceased, equally and without representation. Section 47(8) computes degrees by counting upward from the deceased to the nearest common ancestor and downward to the relative. Half blood kindred inherit equally with whole blood kindred at the same degree.
Scenario 10. Escheat to the Crown (Section 47(7))
When no qualifying relative exists, the property becomes property of the Crown under the Escheats Act, 2015. This is a rare outcome but a real one for individuals with no traceable family.
Quick Reference Table for a Surviving Spouse
The table below summarizes how the SLRA distributes the estate when a spouse survives, assuming the spouse is not separated under section 43.1.
| Family Situation | Spouse Receives | Issue Receive |
| Spouse, no issue | Entire estate | Nothing (no issue exist) |
| Spouse and issue, estate at or below $350,000 | Entire estate | Nothing |
| Spouse and one child, estate above $350,000 | $350,000 plus half of the residue | Half of the residue |
| Spouse and more than one child, estate above $350,000 | $350,000 plus one third of the residue | Two thirds of the residue, divided equally |
What Is the Preferential Share?
The preferential share is the fixed sum that a married surviving spouse takes from an intestate estate before any division with children or other issue. Section 45(5) of the SLRA authorizes the Lieutenant Governor in Council to set the amount by regulation. O. Reg. 54/95 currently sets the preferential share at $350,000 for deaths that occur on or after March 1, 2021. For deaths before that date, the amount stays at $200,000.
The preferential share applies only when the deceased leaves both a spouse and issue. When no issue exist, the spouse takes everything under section 44, so the preferential share is unnecessary. When the estate’s net value falls at or below the preferential share, the spouse takes the entire estate under section 45(1), and no division occurs.
The preferential share also affects partial intestacies. Under section 45(3), if the deceased left a will that gave the spouse property worth less than the preferential share, the spouse can take from the intestate property the amount needed to bring the spouse’s total up to $350,000. If the will already gave the spouse more than $350,000, the preferential share rule does not apply to the intestate property.
Who Qualifies as a Spouse Under the SLRA?
Section 1 of the SLRA defines “spouse” for the purposes of Part II by reference to the Family Law Act definition. A spouse means either of two persons who are married to each other, or who together entered into a marriage that is voidable or void in good faith by the person relying on the definition. This narrow meaning carries an important consequence. Only legally married spouses inherit under the intestacy rules. Same sex married spouses and opposite sex married spouses receive the same treatment.
Common law partners do not qualify under Part II of the SLRA, regardless of how long they lived together or whether they raised children together. The All Families Are Equal Act, 2016 modernized parentage law in Ontario but did not change the spousal definition for intestacy. Part V of the SLRA uses a broader definition that captures common law partners for the purpose of dependant support, but Part II keeps the narrower test.
How Do Separated Spouses Affect Inheritance Rights?
Bill 245, the Accelerating Access to Justice Act, 2021, added section 43.1 to the SLRA. This section came into force on January 1, 2022 and removed intestacy rights from separated spouses who meet defined criteria. Under section 43.1(2), a spouse counts as separated at the time of death if all the following are true. The spouses were living apart at the time of death due to a breakdown of the marriage. And at least one of these conditions applied.
- The spouses lived separate and apart due to the breakdown of the marriage for at least three years immediately before the death.
- The spouses entered into a valid separation agreement under Part IV of the Family Law Act.
- A court made an order with respect to their rights and obligations in the settlement of their affairs arising from the marriage breakdown.
- A family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage.
The three year clock under the first condition started running on January 1, 2022, the day section 43.1 came into force. That meant the three year separation pathway became fully effective only on January 1, 2025. The other three pathways have been available since January 1, 2022. A separated spouse who meets these criteria loses entitlement to the preferential share and to any other share of the intestate estate. They are treated the same way that a divorced former spouse is treated.
Bill 245 also amended section 17 of the SLRA. A separated spouse no longer takes under a will gift, executor appointment, or power of appointment that the testator made before separation, unless the will shows a contrary intention. This change brings will treatment in line with intestacy treatment for separated spouses.
What Rights Do Common Law Partners Have on Intestacy?
Common law partners are not heirs under Part II of the SLRA. The Act gives no automatic share of the estate to a partner, regardless of how long the relationship lasted. This rule surprises many couples in Ontario, particularly because the Family Law Act and other statutes treat common law partners as spouses for some purposes.
A surviving common law partner has two main paths to recover property from the estate. The first is a dependant support claim under Part V of the SLRA. Section 57 of the SLRA defines spouse for Part V to include either of two persons who are not married but have cohabited continuously for at least three years, or in a relationship of some permanence if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act. A qualifying partner can apply to court within six months of the grant of letters probate or administration for support out of the estate. The court considers the partner’s needs and the deceased’s moral obligation.
The second path uses equitable remedies such as a resulting trust or a constructive trust. A common law partner who contributed to property owned by the deceased may ask the court to recognize a beneficial interest. These claims rely on the law of unjust enrichment, joint family venture principles set out by the Supreme Court of Canada in Kerr v. Baranow, and detailed factual evidence. They are complex, costly, and uncertain, which is why estate planning is critical for unmarried couples.
What Is the Spousal Election Between the SLRA and the Family Law Act?
Section 5(2) of the Family Law Act gives a married surviving spouse a powerful choice when their partner dies. The spouse can either accept the entitlement under the SLRA (or the will, if one exists), or elect an equalization payment under the FLA. The equalization payment is half the difference between the spouses’ net family properties calculated as of the day before death. The choice can produce a larger or smaller share depending on the assets held by each spouse during the marriage.
Section 6(10) of the FLA requires the surviving spouse to file the election with the Estate Registrar for Ontario within six months of the date of death. Missing this deadline forfeits the equalization option. The election is a complex calculation, so a surviving spouse should consult an experienced lawyer well before the six month mark.
Common law partners cannot make this election because they do not qualify as spouses under Part I of the Family Law Act for equalization purposes. Only married spouses have the equalization right at death.
How Does Dependant Support Work in an Intestacy?
Part V of the SLRA lets dependants of the deceased apply for adequate provision out of the estate when the intestacy distribution does not provide enough support. Dependants under section 57 include the deceased’s married spouse, common law partner who meets the cohabitation or shared child test, former spouse, children, grandchildren, parents, and siblings, where the deceased was providing support immediately before death or had a legal obligation to do so.
Section 58 sets the test for the application. The court considers whether the deceased made adequate provision for the dependant. If not, the court can order support from the estate. Section 62 lists factors that the court weighs, including the dependant’s current assets and means, capacity to contribute to their own support, age and physical and mental health, needs, accustomed standard of living, length of the relationship with the deceased, and any other matter the court considers relevant.
The court can order lump sum payments, periodic payments, transfers of property, life insurance proceeds, or other relief. The application must be brought within six months of the issuance of the Certificate of Appointment of Estate Trustee, although the court has discretion to extend this period under section 61(2).
What Is the Process for Administering an Intestate Estate?
Administering an intestate estate in Ontario follows a series of steps under the Estates Act and the SLRA. The process is more complex than administering an estate with a clear will because no document identifies the executor or the beneficiaries.
- Identify potential beneficiaries. The first task is to determine who survives and who counts under the SLRA hierarchy. This often requires family records, genealogical searches, and notarized confirmations.
- Apply for a Certificate of Appointment of Estate Trustee Without a Will. Section 29 of the Estates Act sets the priority order for who can apply. A married spouse has first priority, followed by next of kin, and then more distant relatives. The applicant files the application with the Superior Court of Justice and posts a bond unless the court dispenses with the requirement.
- Pay Estate Administration Tax. Under the Estate Administration Tax Act, 1998, the applicant pays $15 for every $1,000 of estate value above $50,000. Estates worth $50,000 or less pay nothing.
- Collect assets and pay debts. The estate trustee gathers all property, identifies all creditors, and pays valid debts. The trustee should publish a notice to creditors under section 53 of the Trustee Act to limit personal liability.
- File final tax returns and obtain a CRA clearance certificate. The trustee files the terminal T1 return and any T3 trust returns, then requests a clearance certificate from the Canada Revenue Agency under section 159 of the Income Tax Act. Distributing before obtaining the certificate creates personal liability for unpaid taxes.
- Distribute the estate. Once debts and taxes are settled, the trustee divides the estate according to the SLRA rules. The trustee should obtain releases from each beneficiary before final distribution.
How Does Intestate Succession Compare to Testate Succession?
The differences between dying with a will and dying without one shape every part of the estate process. The table below highlights the main contrasts.
| Feature | Testate (With a Valid Will) | Intestate (No Valid Will) |
| Choice of beneficiaries | You decide who inherits and in what proportions | Fixed by Part II of the SLRA |
| Choice of estate trustee | You appoint a trustee in the will | Court appoints under the Estates Act priority order |
| Guardian for minor children | You can name a guardian (subject to court approval) | Court decides without your input |
| Common law partner | Inherits if named in the will | Inherits nothing under Part II, but may apply for dependant support |
| Charitable gifts | Allowed and customizable | Not possible under intestacy |
| Tax planning | Use spousal trusts, multiple wills, and other tools | Limited to default rollovers and CRA rules |
| Cost and time | Lower cost, faster administration | Higher cost, longer timeline, greater chance of disputes |
What Are the Consequences of Dying Without a Will?
Dying without a will creates risks for your family. Each of the consequences below shows why estate planning matters.
- Loss of control over distribution. The SLRA decides who inherits and in what shares. Your closest friends, stepchildren, common law partner, or favourite charity may receive nothing.
- Higher administration costs. An intestate estate often requires a bond, court applications, and extensive legal work. These costs reduce the amount available to beneficiaries.
- Family disputes. Without your written instructions, family members may argue over who acts as estate trustee and who counts as an heir. Disputes lengthen the process and damage relationships.
- Surprise outcomes for common law partners and stepchildren. Long term partners and stepchildren may receive nothing because they fall outside the statutory definitions of spouse and issue.
- Court appointed guardianship. If you leave young children, a court decides who raises them. Your preferred guardian has no automatic priority.
- Potential escheat to the Crown. If no qualifying relative can be found, the Crown takes your estate under the Escheats Act, 2015.
- Delays in distribution. Intestate estates take longer to administer because of beneficiary identification, court applications, and the bonding requirement.
Frequently Asked Questions
Does a Common Law Partner Inherit Anything Under Ontario’s Intestacy Rules?
A common law partner does not inherit automatically under Part II of the Succession Law Reform Act. The Act limits intestate succession to legally married spouses. A common law partner can apply for dependant support under Part V if they qualify under section 57, which usually requires at least three years of continuous cohabitation or a relationship of some permanence with a shared child. They may also bring equitable claims such as a constructive trust if they contributed to property held in the deceased’s name.
What Happens to Minor Children if Both Parents Die Without Wills?
If both parents die intestate, the SLRA distributes the estate among the children equally under section 47(1). The court appoints a guardian for the children under section 47 of the Children’s Law Reform Act, with input from the Office of the Children’s Lawyer. A guardian named in a will only has temporary authority for 90 days under section 61 of that Act unless a court confirms the appointment. A child’s inheritance is held by the Accountant of the Superior Court of Justice or a trustee until the child reaches the age of majority, which is 18 in Ontario.
How Long Does It Take to Administer an Intestate Estate in Ontario?
Most intestate estates take between 12 and 24 months to administer fully, though complex estates can take longer. The timeline includes locating heirs, applying for the Certificate of Appointment, paying Estate Administration Tax, collecting assets, paying debts, filing tax returns, obtaining a CRA clearance certificate, and distributing the property. A simple estate with one spouse and no disputes can sometimes close in around nine months. Disputed estates or those with hard to find heirs can stretch beyond five years.
Can a Family Member Override the SLRA Distribution Rules?
Family members cannot override the SLRA on their own. The default scheme is mandatory once intestacy is established. The only ways to vary the distribution involve a court ordered variation, a dependant support order under Part V, a successful will validation application under section 21.1 of the SLRA for an improperly executed document, or a written agreement among all entitled beneficiaries to redistribute their shares (a deed of variation or disclaimer). Each route has formal requirements and tax consequences that a lawyer should review.
Does the SLRA Treat Adopted Children the Same as Biological Children?
Yes. Section 217 of the Child, Youth and Family Services Act, 2017 provides that an adopted child becomes the child of the adoptive parents for all purposes of the law, including intestate succession. The child no longer counts as the child of their birth parents for inheritance from the birth family. Stepchildren who were never adopted do not inherit under the SLRA from a stepparent.
What Happens if Someone Dies Intestate With Property in More Than One Province?
Ontario’s SLRA governs real property located in Ontario. Real property located in another province falls under that province’s intestacy rules. Movable property like bank accounts, investments, and personal items follows the law of the deceased’s domicile at the time of death, which is usually where they had their principal home. Estates with cross provincial property need legal advice in each jurisdiction to coordinate the distribution and the tax filings.
The information provided above is of a general nature and should not be considered legal advice. Every transaction or circumstance is unique, and obtaining specific legal advice is necessary to address your particular requirements. Therefore, if you have any legal questions, it is recommended that you consult with a lawyer.
