– the distribution of the estate (who inherits what) is fixed by statute (the Succession Law Reform Act, or SLRA).
– the SLRA sets out a fixed distribution, with a preferential share of $200,000 to the “spouse” (if the deceased was married) and then thereafter, the estate is shared between the spouse and surviving children. [The SLRA provides for further distribution if there are no surviving spouse or children]
– The SLRA can easily result in a distribution that is very different from what you might expect.
No will & no marriage –> common law spouse gets nothing.
Currently, in Ontario, when there is no will, a common law spouse (i.e. not formally or legally ‘married) has no right to inherit anything from their deceased partner, and, has no right to equalization under The Family Law Act. This applies even if the two common law spouses had children together, and even if the common law spouse is the estate trustee (see above).
Joint accounts when there is no will
You should not assume that the use of ‘joint accounts’ and placing assets like houses ‘in joint tenancy with a right of survivorship’ solves all problems (such as avoiding probate and probate fees). This is only an effective way to dispose of assets if the intent was to make a gift to the other joint owner.
Joint bank accounts with adult children: be careful
With joint bank accounts held by a parent and adult child, the burden of proving that a gift was intended lies on the surviving adult child. If this burden is not met, the asset will belong to the estate of the deceased and must be probated, administered and distributed in accordance with the SLRA. If you intend to make a gift of cash or investments, put it in writing.