Dying Without a Will in Ontario: How Part II of the SLRA Divides It

Every January, a married couple in Guelph spend one evening with the household binder: insurance renewals, the mortgage statement, the children's school forms. This year their eldest, home from college, flipped to an empty tab marked "Wills" and asked, half joking, who would get the house if neither of them ever filled it in. Neither parent knew. The answer, it turns out, is written into an Ontario statute.

When a person dies without a will, Ontario law says they died intestate, and Part II of the Succession Law Reform Act (the SLRA) supplies a fixed sharing formula. It does not ask what the family would have wanted. This guide follows that formula from the simplest family shape to the most distant relative, with the Ontario figures and deadlines the statute sets. For how the rules compare across provinces, see our national guide to dying without a will in Canada.

First question: who is a "spouse" for Part II? #

Everything in the formula hinges on whether there is a surviving spouse, and Part II uses a narrow definition. Section 1(1) of the SLRA borrows the meaning from section 1(1) of the Family Law Act, which covers two persons who are married to each other, or who entered in good faith into a marriage that is void or voidable.^[NaN][NaN] That definition does not include unmarried partners.

That is not the end of the story for an unmarried partner. Part V of the SLRA, on support of dependants, uses a broader definition from section 29 of the Family Law Act. It adds two people who are not married and have cohabited continuously for at least three years, or in a relationship of some permanence as the parents of a child.^[NaN] A "dependant" must be someone the deceased was supporting, or was legally obliged to support, immediately before death. Where adequate provision was not made, the court may order support from the estate "whether testate or intestate."^[NaN]

So Part II gives a share to a married spouse as defined, while an unmarried partner may have a dependant-support claim. Timing matters there. Under section 61, an application generally cannot be made more than six months after the grant, except that the court may allow it for any part of the estate still undistributed.^[NaN]

A spouse and no children #

This is the simplest case. Under section 44, where a person dies intestate and is survived by a spouse but not by issue (children and their descendants), the spouse is entitled to the property absolutely.^[NaN]

A spouse and children: the preferential share comes first #

With children in the picture, the spouse is paid first, up to a fixed amount called the preferential share. Section 45 says that if the net value of the intestate property is not more than the preferential share, the spouse takes it all; if it is more, the spouse takes the preferential share absolutely.^[NaN]

The preferential share is set by regulation. Under O. Reg. 54/95, it is $350,000 for persons who die on or after March 1, 2021, and $200,000 for persons who died before that date.^[NaN]

"Net value" is defined in section 45(4) as the value of the property after paying charges against it and the debts, funeral expenses and expenses of administration.^[NaN] If you would like a rough sense of what an estate may be worth and what probate may cost, our probate fee calculator and our article on probate fees in Ontario are useful companions.

Dividing what is left after the preferential share #

Whatever remains after the preferential share is called the residue, and section 46 splits it by how many children there are:

• spouse and one child: the spouse takes one-half of the residue;
• spouse and more than one child: the spouse takes one-third of the residue.^[NaN]

The rest of the residue goes to the issue under section 47(1).^[NaN] Two further rules keep a branch of the family from being skipped. A child who died before the intestate but left issue alive at the date of death is counted as living when working out the spouse's share, and that child's share passes down to their own issue.^[NaN]

Example. A married Ontario resident dies on or after March 1, 2021, with no will, survived by a spouse and three children, and the net value is more than $350,000. The spouse first takes $350,000. Because there is more than one child, the spouse then takes one-third of the residue, and the remaining two-thirds of the residue goes to the three children. If one of those children had died earlier leaving two kids of their own, the count of children would still be three, and that child's portion would go to the two grandchildren.

When there is no spouse and no children #

Section 47 then works outward through the family, stopping at the first group with a surviving member:

1. the parents, equally, or the one surviving parent;
2. brothers and sisters, equally, with a predeceased sibling's share going to that sibling's children;
3. nephews and nieces, equally, without representation;
4. next of kin of equal degree;
5. the Crown, with the Escheats Act, 2015 applying.^[NaN]

Half-blood relatives are not treated as second-class. Under section 47(8), kindred of the half-blood inherit equally with those of the whole-blood in the same degree.^[NaN]

Separated, but still married #

Many families assume separation automatically ends a spouse's share. In Ontario it can, but only on the specific terms in section 43.1. Under that section, a separated spouse loses the Part II entitlement only if:

• one of the separation events in section 43.1(2)(a) happened on or after January 1, 2022 (living apart for three years immediately before the death, a valid separation agreement, a court order, or a family arbitration award);
• in the three-years-apart case, the spouses also began living apart on or after that day; and
• they were still living separate and apart at the time of death.^[NaN]

If those conditions are not all met, the separated spouse may still be a spouse for Part II purposes. This is an area where individual advice is especially worthwhile.

The married spouse's choice: Part II or equalization #

A married surviving spouse in Ontario usually has a decision to make. Section 6 of the Family Law Act requires the spouse of someone who died intestate to elect between the Part II entitlement and an equalization of net family property under section 5.^[NaN] The election is filed with the Estate Registrar for Ontario within six months after the death. If it is not filed in time, the spouse is deemed to have chosen the SLRA entitlement unless the court, on application, orders otherwise.^[NaN]

Because the two options can produce very different results, the six-month window is worth marking on the calendar early.

A will that leaves something out #

Part II is not only for people with no will at all. Section 45(3) and the rest of the Part also apply where a person dies testate as to some property and intestate as to other property.^[NaN] A will that forgets a bank account or names a beneficiary who has died can leave a pocket of the estate to be shared under these same rules.

Our complete Ontario executor guide covers what the person administering the estate does next, with or without a will.

Filling in the empty tab #

The Guelph couple left that evening with a different view of the binder. Part II would have shared their estate between the spouse and the children in fixed fractions, but a formula cannot reflect personal wishes, such as a gift to the friend who has been like family. Choices like that belong in a will. Our guide to writing a will in Ontario and the Ontario wills page show what the process looks like here.

When you are ready to fill in your own empty tab, It's Simple Will lets you begin a will and build it one question at a time.