When a person dies without a will, they are said to have died intestate. In Ontario, the Succession Law Reform Act (“SLRA”) provides guidance on how an individual’s estate is to be distributed. While this post does not cover the full chain of succession, the most common intestacy issues are covered below:
Mark dies without a will. He is married to Jane, who survives him and they do not have any children. In this situation, the whole of Mark’s estate would go to Jane. While there are other options available to spouses, it will be discussed in a future post. Common law spouses are not afforded the same entitlements as married spouses if their partner dies intestate.
The definition of “child” according to the SLRA includes a biological child or a legally adopted child. Where blended families are concerned stepchildren who are not legally adopted are not entitled to the benefits of the natural or adopted child of the intestate deceased.
If the intestate deceased dies and is married with a child or children, the surviving spouse is entitled to a “preferential share” of the estate, before the rest of the estate is distributed. In Ontario, the preferential share is currently set at $200,000.00 as per the Family Law Act. Everything over the preferential share is then split between the survivor and the deceased’s children.
Spouse & One Child
In a situation where there is only one child, the remaining estate gets split evenly between the spouse and child evenly at 50/50.
Spouse & More than One Child
Where there is more than one child, the spouse will receive 1/3 of the estate and the children divide the remaining 2/3 of the estate depending on the number of children.
No Spouse & Children
If the individual dies without a spouse, but leaves children, the estate is divided equally among the surviving children. For example, if there were 3 children, each child would get 1/3 of the estate.
No Spouse & No Children
In the event that the individual died intestate without a spouse and without children, the estate would vest with the deceased individuals parents in equal shares. In a situation where only one parent is alive, that parent would receive the whole of the deceased’s estate.
No Spouse & No Children & No Surviving Parents
Where an individual dies without a spouse, children or surviving parents, the estate is divided equally amongst the deceased’s siblings. If one of the siblings predeceases the deceased, that sibling’s share would pass to his or her children.
No Spouse, No Children, No Surviving Parents, No Siblings and No Niece/Nephews
Where an individual dies intestate and does not have a spouse, children, surviving parents, siblings or nieces and nephews, the estate is divided equally amongst the deceased’s next of kin of equal degree of consanguinity to the intestate. Degrees of consanguinity are determined by counting upward to the nearest common ancestor and then downward to the nearest relative.