In most cases when a person dies, beneficiaries are identified in their Will. But when a person dies without a Will (referred to as “intestate”), rules need to be followed to identify who the heirs are.
The same issues might arise if a Will is old and the named beneficiaries have predeceased, or in situations where a Will does not completely distribute the estate assets.
In these situations, the estate assets (or a portion of the assets) are distributed according to the rules of intestate succession set out in Ontario’s Succession Law Reform Act (SLRA). This statutory framework determines who inherits based on familial proximity, using two key concepts: degrees of consanguinity and representation, to ensure that the closest family members are first in line. Degrees of consanguinity refers to how closely related an individual is to the deceased, while representation allows the descendants of a predeceased heir to inherit in that heir’s place in limited circumstances. Understanding how degrees of consanguinity and representation affect estate distribution is key to navigating intestate succession in Ontario.
Legislation First
The first step in identifying heirs is to look to Part II of the SLRA. This legislation provides a clear order of priorities depending on who survives, starting with the deceased’s spouse and issue. “Spouse” generally refers to a legally married spouse. Separated spouses may be excluded under specific statutory conditions, while common-law spouses do not have automatic intestacy entitlements but may be able to bring dependant support claims under the SLRA. “Issue” refers to blood-related descendants, such as children, grandchildren, and so on.
Where there are a surviving spouse and children, the spouse is entitled to a preferential share (currently the first $350,000.00 of the estate) and the remainder of the estate is divided between the spouse and children. The proportions will depend on how many children survive. If a child has predeceased and has issue living, the deceased child’s share is further divided among their issue of the nearest degree.
Where there is no spouse or issue, the estate is divided among the deceased’s parents equally, or if only one parent is living, the estate will go to the surviving parent.
Where there is no spouse, issue, or parents, the estate is distributed equally among the surviving siblings, and if a sibling has predeceased, their share passes by representation to their children. Representation ends here and does not pass to the next generation so long as there is at least one living sibling.
Where there is also no surviving sibling, the estate is distributed equally among all of the living nieces and nephews, without representation. Only the living nieces and nephews will inherit.
When a person dies intestate with no surviving spouse, issue, parent, sibling, nephew or niece, the SLRA distributes the estate “among the next of kin of equal degree of consanguinity to the intestate equally without representation.” In simple terms, this means the estate goes to the closest living relatives – but determining who those are can be complicated.
Tracing Next of Kin: How Consanguinity Is Determined
Before the table of consanguinity comes into play, it is important to remember that the SLRA hierarchy takes precedence over degrees of kinship. Even if someone is technically a more distant relative, statutory rules can give them priority. For example, although a great-grandchild is more remote in degree than a sibling, section 47(2) expressly gives priority to a great-grandchild over a sibling.
Consanguinity refers to how closely two people are related by blood. The degree of kinship is determined by counting up from the deceased to the nearest common ancestor and down to their next generation of living relatives.
Once it has been confirmed that the deceased left no spouse, descendants, parents, siblings, nieces, or nephews, the search expands outwards, starting with grandparents on both the maternal and paternal sides and the uncles and aunts, as grandparents and aunts and uncles are all two degrees separated from the deceased (and while the nieces and nephews are also two degrees from the deceased, they have already been given priority under the SLRA). If there is any living person among the group of grandparents and uncles and aunts, those who are living will share equally, with no representation. If none are living, the search moves to the next degree of kinship which consists of the group of first cousins, great nieces and great nephews, great grandparents, and great aunts and great uncles. All such living relatives, on both sides of the family, are considered of equal degree and therefore inherit in equal shares.
The process continues outward, degree by degree, until the nearest living blood relatives are identified. Each step up or down the family tree counts as one “degree of kinship” and relatives with the fewest degrees of separation are considered closest in kindred and take priority. For example, a first cousin (who shares a grandparent with the deceased) is closer in degree than a second cousin (who shares a great-grandparent) and therefore inherits ahead of them.
Where there are no close surviving relatives, proving entitlement becomes more difficult and evidence driven. This may require court applications to have someone appointed as estate trustee, and genealogical investigations or expert evidence may be needed, particularly where family trees are incomplete or relatives reside internationally. To avoid personal liability, estate trustees must ensure all eligible next of kin are properly identified when distributing the estate on an intestacy.
If there is no identifiable next of kin, the estate “escheats” and become the property of the Crown.
Special Considerations: Adoption, Half-Blood Relatives and Posthumous Descendants
Under Ontario’s Child, Youth and Family Services Act, upon an adoption order being made, an adoptive child becomes the child of the adoptive parent and ceases to be a child of the person who was their parent before the adoption order was made. Therefore, for succession law purposes, an adoptive child will have all of the same rights as a blood-related child.
Ontario’s intestacy laws also account for half-blood relatives (e.g., half-siblings), who are treated equally to full-blood relatives of the same degree. For example, a half-sibling has the same inheritance rights as a full sibling.
Additionally, posthumous descendants (those conceived before but born after the death of the deceased) are entitled to inherit as if they had been born during the deceased’s lifetime, provided certain conditions are met.
Conclusion
Ontario’s intestacy laws aim to distribute estates to the closest surviving relatives, guided by the principles of consanguinity and representation. While this framework provides structure, it can become complex, especially in the absence of a clear family line. For those wishing to ensure their wishes are followed, making a Will is crucial. If you need assistance with estate planning or administering an intestate estate, contact a member of our Wills, Estates & Trusts team. We would be pleased to help.