“If I die, my spouse will get everything”
By Heela D. Walker
April 21, 2017
under Ontario law only.
People have all kinds of creative ideas about what happens to their assets if they die without a Will. One common misconception is that if you die without a Will, all your assets will automatically go to your spouse. This assumption can often lead to unintended consequences; while it may be true that, in some limited circumstances, your spouse will automatically get your assets, it’s not always the case.
So what really happens if you die without a Will? Each province sets out its own legislation governing this very issue. In Ontario, the Succession Law Reform Act sets out the rules of “intestacy”, or in other words, the division of your property if you die without a Will.
If you are married at your death, did not have any children and die without a Will, then, yes, it’s true: your spouse will get all of your assets. But the definition of “spouse” for this purpose is very limited – it only includes a legally married spouse (different statutes apply different definitions of the word “spouse”).
So, if you are living in a common-law relationship with someone for 20 years and then you die without a Will, guess what? Your common-law spouse is legally entitled to nothing. Zero. Zilch. Nada. (However, your surviving common-law spouse may be eligible to bring a dependant’s support claim against your estate if he needs funds to support himself.)
If you are married at your death, have one or more children and die without a Will, your spouse (but only a legally married spouse) will be entitled to the “preferential share” of your estate (the first $200,000), and the rest will be split in half between your spouse and child, if you have only one child. If you have more than one child, then one-third will go to your spouse, and two-thirds will go to your children.
This division of assets is not usually what the deceased had in mind. More commonly, she may have intended to leave all assets to the surviving spouse for him to manage and distribute following his subsequent death.
There are many reasons to write a Will. Ensuring your specific intentions are carried out is paramount.
