What Happens to a Child's Inheritance If a Parent Dies Without a Will in Ontario?
Losing a parent is one of life’s most difficult experiences. But when a parent dies without a will—also known as dying intestate—the grief can quickly become tangled with confusion, legal delays, and uncertainty, especially when it comes to inheritance.
For children of a deceased parent, the natural assumption is that they will automatically inherit something. But that isn’t always the case. In Ontario, the Succession Law Reform Act lays out strict rules about how an estate is divided if there’s no will. And unfortunately, those rules don’t always reflect what a family might consider “fair.”
If you're wondering what happens to a child’s inheritance in this situation, here’s what you need to know.
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Understanding Intestacy: When There’s No Will
When someone dies without a valid will, they are said to have died intestate. In these cases, the Ontario government decides how their assets are distributed, according to a legal formula.
This formula does not take into account:
Verbal promises,
Family dynamics,
What the deceased “would have wanted,” or
Emotional considerations.
The distribution depends entirely on who survives the deceased, particularly whether they were married and whether they had children.
If the Deceased Was Married With Children
If a parent dies intestate and was legally married (not common-law), the surviving spouse has legal priority.
Here’s how the estate is distributed under Ontario law:
The surviving spouse is entitled to the first $350,000 of the estate. This is known as the preferential share.
If the estate is worth less than or equal to $350,000, the spouse inherits everything.
If the estate is worth more than $350,000:
The spouse gets the first $350,000,
The remainder is divided between the spouse and the children.
If there is one child, the spouse and child split the remainder 50/50.
If there are two or more children, the spouse receives one-third, and the children share the remaining two-thirds equally.
Example:
Let’s say a parent dies intestate and their estate is valued at $800,000.
The spouse receives the first $350,000.
That leaves $450,000.
If there are two children:
The spouse gets 1/3 of $450,000 = $150,000
Each child gets 1/3 of $450,000 = $150,000 each
What About Common-Law Partners?
In Ontario, common-law spouses are not treated the same as married spouses when it comes to inheritance. If a common-law partner dies without a will, their surviving partner does not automatically inherit anything unless:
They jointly owned property with the right of survivorship,
Or were named as a beneficiary on accounts like RRSPs or life insurance.
Children, however, do have inheritance rights in this case and may receive the full estate under intestate rules.
Assets That Bypass the Estate
It’s important to understand that not all assets go through the estate, even when someone dies without a will.
Assets that may pass outside of the estate include:
Jointly owned property with right of survivorship (e.g., the family home),
Registered accounts (RRSPs, TFSAs, pensions) with named beneficiaries,
Life insurance with named beneficiaries.
These assets automatically go to the named individual, regardless of intestacy laws, and are not part of what’s divided among the spouse and children.
So even if a child is legally entitled to a share of the estate, there may be very little left in the estate to inherit if most of the parent’s assets passed outside of it.
What Happens If the Surviving Spouse Remarries?
In cases where the surviving parent remarries and continues to manage the deceased spouse’s property and finances, children may feel understandably left out—especially if they never see any of their deceased parent’s wealth.
This can be legally justified if:
The surviving parent inherited all assets through joint ownership or as a named beneficiary, and
The estate itself (i.e., the pool of assets subject to division under intestate laws) was small or nonexistent.
While this may feel morally wrong or emotionally distressing, it is often perfectly legal under Ontario law—unless a court finds evidence of fraud or abuse.
Can a Child Challenge the Estate?
Yes—but with major caveats.
A child may challenge how an estate was handled if they believe:
They were wrongfully excluded,
The estate was mismanaged or hidden,
Or assets that should have gone into the estate were improperly transferred.
However, they would need:
Solid documentation,
Access to estate records,
Legal representation (usually at their own cost), and
A timely response, ideally within 2 years of the death or the discovery of wrongdoing.
Legal fees can be high, and if the estate has already been distributed or drained, it may be too late to recover anything.
What If the Child Is a Minor or Has a Disability?
If the child is under 18, their inheritance must be held in trust until they reach adulthood. The surviving parent or a court-appointed guardian may manage the funds in the meantime.
If the child has a disability, special arrangements (like a Henson Trust) can be made through proper estate planning. But without a will, this kind of care usually doesn’t happen automatically.
What Can You Do If You’re in This Situation?
If your parent died without a will, and you believe you were entitled to part of their estate, here are a few steps you can take:
Request a copy of the Certificate of Appointment of Estate Trustee from the Ontario Superior Court of Justice.
Consult an estate lawyer—even for a one-hour meeting—to understand whether you have a case.
Request an accounting of the estate’s assets and debts (if probate occurred).
If appropriate, consider filing a legal challenge—but be aware of cost, timelines, and emotional toll.
Final Thoughts
Ontario’s intestate succession laws are clear-cut—but they aren’t always fair in the eyes of those left behind.
When a parent dies without a will, children may receive less than expected, or nothing at all, depending on how assets were owned and whether a surviving spouse exists. That’s why estate planning matters so deeply—not just for tax efficiency, but for preserving family relationships and reducing resentment.
If you’re dealing with the aftermath of a parent’s death and inheritance questions, reach out to a legal professional. And if you’re a parent yourself, don’t delay writing a will. It’s one of the most compassionate acts you can do for your children.
