Where a person dies intestate, the deceased’s estate will be distributed in accordance with the provisions of Part II of the Succession Law Reform Act, R.S.O. 1990, c.26 (the “SLRA”). How and among whom the deceased’s estate is distributed will depend entirely on whom the deceased is survived by. If he or she is survived by only a spouse and no children then the spouse will inherit the entire estate. If the deceased is survived by a spouse and one or more children, the spouse is entitled under the SLRA to receive a preferential share of the estate. The amount of the preferential share is prescribed by Regulation – currently in Ontario it stands at $200,000. If there is a remainder of the estate once the preferential share has been paid, the remainder is to be divided equally amongst the spouse and the surviving child(ren). For example, if the deceased is survived by a spouse and one child, the remainder of the estate would be divided equally between the spouse and the child. If the deceased is survived by a spouse and two children, the remainder of the estate would be divided into thirds with the spouse and each child receiving one third. And so on.
It is critical to note that the SLRA restricts the definition of “spouse” to either of a man or woman who is married to each other, and it includes a spouse from whom the deceased was separated but not legally divorced. Accordingly, and very importantly, the definition of spouse under the SLRA does not include a common-law or same-sex spouse or partner. It should be noted, however, that a possible exception to the above-noted spousal entitlement on intestacy is afforded by the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). The FLA provides that where a person dies (either intestate or with a Will) and is survived by a spouse (the FLA defines spouse more broadly that does the SLRA), such spouse may choose to receive his or her entitlement under Part II of the SLRA or under section 5 of the FLA (which provides for an equalization as between the net family property of the spouse and the deceased person).
Where a minor child (under 18 years of age) of an intestate person is entitled to a share of the deceased’s estate, such share must be converted into cash and paid into court to be administered by The Office of the Children’s Lawyer. If any money is needed for the minor child’s benefit before the child turns 18 years of age, an application must be made to The Office of the Children’s Lawyer by the child’s guardian. The child’s share of the estate, or any remainder thereof, will be paid outright to the child as soon as he or she attains the age of majority.
Where a person dies intestate and leaves no surviving spouse or children, his or her estate will be inherited by the deceased’s parents, siblings, nephews and nieces, or other next of kin, in that order. If no next of kin can be located then the deceased’s estate shall become the property of the Crown, pursuant to the Escheats Act, R.S.C. 1985, c. E-13.
Thanks for reading “The Estates Nutshell” – questions and comments are very welcome at estates@cklegal.ca.