When a person dies without a Will, or “intestate”, the division of that person’s estate in Ontario is governed by the Succession Law Reform Act (“SLRA”). When a legally married (not cohabiting) spouse dies without a Will, the surviving spouse does not necessarily inherit all of the estate under the SLRA. The distribution depends on the value for the deceased spouse’s estate, and whether or not the deceased spouse also had children.
If a spouse dies without a Will and never had children, then the surviving spouse is entitled to the deceased spouse’s property absolutely.
If a spouse dies without a Will and is survived by a spouse and children (whether or not they are children of the marriage), then the surviving spouse is entitled absolutely to a “preferential share” in priority to the deceased spouse’s children, after which the balance is divided, as follows:
- If a spouse dies without a Will in respect of net property valued at less than the “preferential share”, and is survived by a spouse and children, then the spouse is still entitled to the property absolutely, and the children will not receive an inheritance.
- If a spouse dies without a Will in respect of net property valued at more than the “preferential share”, and is survived by a spouse and one child, then the spouse is entitled to one-half of the net property after payment of the “preferential share”, and the child inherits the other half.
- If a spouse dies without a Will in respect of property valued at more than the “preferential share” and leaves a spouse and two or more children, then the spouse is entitled to one-third of the net property after payment of the “preferential share”, and the remaining two-thirds is divided evenly among the children.
And what is this “preferential share” referred to above? The answer depends on when the spouse died. If a spouse died without a Will before March 1, 2021, then the surviving spouse’s “preferential share”, or priority entitlement, is the first $200,000. Following recent amendments to the Regulations of the SLRA, if a spouse died without a Will on or after March 1, 2021, the surviving spouse’s preferential entitlement is increased to the first $350,000.
It is important to note that currently, the intestate distribution described above applies to legally married spouses, including spouses who have separated but are not divorced. However, if other proposed amendments to the SLRA are passed, then this would no longer be the case, as the distribution on intestacy would no longer apply if the spouses are separated before or at the time of the spouse’s death. “Separated” is defined in the proposed amendments as (i) the spouses have lived separate and apart for three years due to the breakdown of the marriage; (ii) the separated spouses entered into a valid separation agreement; (iii) the court made an order settling the spouses’ affairs arising from the breakdown of the marriage; or (iv) a family arbitration award was made settling the affairs of the separated spouses.
The fact that three years of separation would be required under the proposed amendments to disqualify a separated-yet-still-legally-married surviving spouse from inheriting on intestacy may very well lead to litigation in cases where separated spouses made attempts at reconciliation over the relevant time period.
As such, it is always preferable to avoid an intestacy and spouses (especially separated ones) should make Wills and otherwise organize their affairs to avoid any uncertainty that may result from dying without a Will.
