Intestate Succession

When a person dies without a valid will, a person is considered to have passed away “intestate”, in this situation the Ontario’s Succession Law Reform Act sets out how the estate is distributed, rather than the deceased’s last will and testament.

Part II of the Succession Law Reform Act, particularly section 45(1) provides as follows:

“…where a person dies intestate in respect of property having a net value of not more than the preferential share and is survived by a spouse and issue, the spouse is entitled to the property absolutely.”

Currently the preferential share is $200,000.00 (Succession Law Reform Act, Ontario Regulation  54/95). Therefore, pursuant to section 45(1) of Part II of the Succession Law Reform Act, unless someone who is financially dependent on the deceased person makes a claim, if the total value of an Estate does not exceed $200,000.00, the legally married spouse of the deceased is entitled to the entire Estate absolutely; [subject of course to any creditor(s) claim(s) and/or dependant(s) support obligation(s)].

The other possibility for the deceased’s legally married spouse is to claim half of the net family property.

Anything over $200,000.00 is shared between the spouse and the descendants (e.g. children, grandchildren) according to specific rules.

If there is no spouse, the deceased person’s children will inherit the estate. If any of them have died, that child’s descendants (e.g. the deceased person’s grandchildren) will inherit their share.

If there is no spouse or children or grandchildren, the deceased person’s parents inherit the estate equally.

If there are no surviving parents, the deceased person’s brothers and sisters inherit the estate. If any of the brothers and sisters have died, their children (the deceased person’s nieces and nephews) inherit their share.

If there are no surviving brothers and sisters, the deceased person’s nieces and nephews inherit the estate equally. However if a niece or nephew has died, their share does not pass to their children.

When only more distant relatives survive (e.g. cousins, great nieces or nephews, great aunts and uncles), the rules are complex and you should speak to a lawyer.

If any heir was alive when his or her relative died, but died before the estate was distributed, that person’s own heirs are entitled to their share.

When a person dies without a will, only blood relatives, including children born outside of marriage, or legally adopted children can inherit. Half-blood relatives share equally with whole-blood relatives.

However, for the sake of this article we will assume that the total value of the estate of the deceased in thi case does not exceed the preferential share (i.e. $200,000.00).

So, in this case, what about the deceased’s children? What if the deceased had a common law spouse?

With respect to any children: if the deceased’s children are adults, were not being supported in any way by the deceased immediately prior to his/her death, and do not consider themselves as dependants, then pursuant to section 45(1) of the SLRA the children would be legally entitled to nothing.

For the purposes of Part II, the word “spouse” means either of two persons who are married to each other.  The definition applicable to that Part does not extend to common law spouses (Prelorentzos v. Havaris, 2015 ONSC 2844 (CanLII), paragraph 10).

Therefore, should a deceased have a legally married spouse and a common law spouse at the time of his/her death, and should the deceased pass away intestate with an estate valued less than $200,000.00, the common law spouse will receive nothing. Unless, the common law spouse initiates a dependant’s claim.

Dependants of a deceased may have a claim to support under Part V of the SLRA. Section 58(1) of same provides as follows:

“Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.”

A spouse is included within the definition of dependant.  For the purposes of Part V, “spouse” is more broadly defined. The definition found in s. 57 is not restricted to those who are legally married.  It also includes unmarried persons who “have cohabited continuously for a period of not less than three years” (Prelorentzos v. Havaris, 2015 ONSC 2844 (CanLII), paragraph 22).

However, to be properly considered a dependant the common law spouse and the deceased must have “cohabited”.  “Cohabit” is also defined.  It means “to live together in a conjugal relationship” (Prelorentzos v. Havaris, 2015 ONSC 2844 (CanLII), paragraph 23).

The common law spouse bears the onus of proving, on a balance of probabilities, that he/she and the deceased were spouses within the meaning of s. 57 of the SLRA. If he/she meets the burden of proof the common law spouse would be entitled to support from the deceased’s estate, despite section 45(1) of the SLRA.

Section 58 of the SLRA provides that the court may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants.  The relevant valuation date is the time of the hearing.