What Are Your Spouse’s Entitlements If You Die Without a Will in Ontario?
When someone dies without a will in Ontario, this is referred to as dying intestate. In these cases, Ontario law determines how that person’s property will be distributed. While this legal process provides a default framework, it may not reflect your personal wishes or the specific needs of your loved ones.
This is why estate planning, including making a valid will, is so important. Without one, you lose control over who manages your estate and who ultimately benefits from it.
In this blog, we explain what your spouse’s entitlements may be if you pass away without a will in Ontario. The answer depends on whether your spouse was legally married to you or was a common-law partner at the time of your death.
Married Spouse
When someone dies intestate, a married spouse may have rights under two separate pieces of Ontario legislation. The first is Part II of the Succession Law Reform Act (SLRA), which outlines the distribution of an estate when there is no will. The second is Part V of the Family Law Act (FLA), which allows a surviving spouse to claim an equalization payment, similar to what happens in a divorce.
A surviving spouse must choose between these two options. They cannot claim under both the SLRA and the FLA. The option that makes the most sense depends on the value of the estate and the individual’s circumstances.
Entitlements Under Part II of the Succession Law Reform Act
The SLRA outlines how an estate is divided when there is no will. Under this legislation, the term “spouse” refers specifically to legally married spouses. Common-law partners are not included in this definition.
If a person dies leaving a spouse but no children or other descendants, known as “issue”, the surviving spouse is entitled to inherit the entire estate. This is the simplest scenario.
However, things become more complicated when there is both a surviving spouse and children. In that case, the spouse is first entitled to receive what is known as the Preferential Share, which is currently set at $350,000 CAD in Ontario. This amount is taken off the top of the estate before anything else is divided. If the estate is worth less than $350,000, the spouse will inherit the entire estate. If it is worth more, the spouse receives the first $350,000, and whatever remains (the residue) is divided between the spouse and the children.
The division of the residue depends on the number of children. This is known as the Distributive Share. If there is one (1) surviving child, the spouse receives half (1/2) of the residue and the child receives the other half (1/2). If there are two (2) or more children, the spouse receives one-third (1/3) of the residue, while the children share the remaining two-thirds (2/3) equally among them. The distribution is altered if you have a child who predeceased you. However, your spouse’s Distributive Share is never less than one-third (1/3).
It is important to note that a surviving spouse must file an election to claim these SLRA entitlements. These rights are not automatic and must be exercised within a specific timeframe.
Alternative Option: Equalization Under Part V of the Family Law Act
Instead of claiming under Part II of the SLRA, a married spouse has the option to elect for an equalization payment under Part V of the FLA. This process works similarly to what would happen if the couple had separated before death.
The first step is to determine the Net Family Property (NFP) for both the deceased and the surviving spouse. This calculation represents the total value of assets, minus certain exclusions and deductions. The value of the deceased’s estate is assessed as of the day before death, while the surviving spouse’s assets are valued as of the same date. Once both NFPs are calculated, the lower NFP is subtracted from the higher NFP, and the difference is divided by two. If the surviving spouse has the lower NFP, they are entitled to receive the difference from the deceased’s estate.
By choosing this route, a spouse may receive more (or less) than they would under the intestacy rules. However, this choice has important consequences. For example, if the surviving spouse is also a named beneficiary on assets such as life insurance or RRSPs, those amounts will count towards their share in the equalization calculation, potentially reducing the payment they receive from the estate. The impact of beneficial assets does not exist under the SLRA entitlement mentioned above.
It will be crucial for a surviving spouse to consult with a lawyer before deciding whether to proceed under Part II of the SLRA or Part V of the FLA, as the calculations can be complex. An election regarding an equalization payment is available to your married spouse, whether you die intestate, testate, or partially intestate; however, there will be different implications of the election depending on the status of your estate regarding the presence and completeness of a will.
Common-Law Spouse
If an individual were to die without a will, leaving behind a common-law spouse (unmarried), the entitlements available to a married spouse under Part II of the SLRA and Part V of the FLA are unavailable.
Instead, a surviving common-law spouse’s potential entitlements are limited to beneficiary designations and a claim for dependent support under Part V of the SLRA.
An application for dependent support is a complex legal process that requires the surviving spouse to address the following questions:
- Does the claimant meet the legal definition of a “dependent”?
- Was the deceased providing support, or was there a legal obligation to support?
- What other factors are relevant to the claim?
It is important to note that a claim for dependent support is not unique to common-law spouses. Married spouses, former spouses, children, and even other relatives may also bring this type of claim should they believe they are entitled to such support. A claim for dependent support may be made regardless of whether or not a person dies testate or intestate.
Importance of Having a Will
Without a will, you cannot control who manages your estate, how your assets are divided, or what specific gifts are made to loved ones. Creating a valid will ensures that your wishes are respected, reduces the likelihood of disputes, and helps provide certainty for your family during an already difficult time.
Understanding your spouse’s rights when you die without a will can be complex, particularly when deciding between an intestacy claim and an equalization claim. There are many nuances and exceptions to these rules that have been simplified for the purposes of this article. If you’d like personalized guidance for your unique situation, contact us today to discuss your options and protect your family’s future.
*This post is not legal advice. Every estate is different, and the right course of action will depend on your specific circumstances. If you are dealing with the death of a loved one or planning your own estate, you should contact a lawyer to get legal advice tailored to your needs.
Blog written by: Kaylin Mesic
