Dying Without a Will in Canada: Intestacy Rules Explained

If you die without a valid will in Canada, provincial law, not your personal wishes, decides who inherits your estate and in what order.

What "Dying Without a Will" Means in Canada

Dying "intestate" means a person died without a valid will, or with a will that does not dispose of the entire estate. In either case, the province or territory where the deceased was domiciled applies its own intestate succession statute to decide who inherits. Each province has different rules, so the outcome for the same family can differ significantly depending on where the deceased lived.

These statutes include Ontario's Succession Law Reform Act, British Columbia's Wills, Estates and Succession Act (WESA), Alberta's Wills and Succession Act, Saskatchewan's Intestate Succession Act, 2019, and similar legislation in every other province. Quebec is the exception: it applies the Civil Code of Quebec's rules on succession rather than a common law style intestate succession act.

Intestacy law fills a gap. It does not know that you wanted a particular sibling to receive family heirlooms, that you wanted to leave a specific gift to a friend or charity, or that you wanted a common-law partner treated the same as a married spouse. It applies a fixed formula based on which relatives survive.

The Order of Inheritance Under Intestacy

Although the dollar amounts differ, the common law provinces generally follow the same basic hierarchy.

1. Spouse and descendants (children, grandchildren) survive: the spouse receives a preferential share, a fixed dollar amount, plus a portion of anything left over; descendants share the remainder.
2. Spouse survives with no descendants: the spouse usually receives the entire estate.
3. No spouse, but descendants survive: descendants share the estate equally, per stirpes, meaning a deceased child's share passes to that child's own children.
4. No spouse or descendants: parents inherit, then siblings, then nieces and nephews, then more distant next of kin, in an order set out in the applicable act.
5. No next of kin at all: the estate escheats to the Crown in right of the province.

"Spouse" in every province except Quebec's Civil Code framework generally means a person who was legally married to the deceased at the time of death. A divorce, or in some provinces a separation, ends spousal status for intestacy purposes. Whether an unmarried common-law partner counts as a "spouse" for intestacy is where the provinces diverge sharply, covered below.

Spousal Preferential Share by Province

Before children or other relatives receive anything, most provinces give the surviving spouse a "preferential share," a fixed dollar amount paid off the top of the estate. Only after the preferential share is paid does the remainder get divided between the spouse and descendants.

After the preferential share, if any, is paid, the remainder is typically split this way in the common law provinces. If the deceased left one child, the spouse and that child usually split the remainder equally. If more than one child survives, the spouse typically takes one third of the remainder and the children share two thirds equally among them, subject to each province's exact formula.

Common-Law Partners: A Major Trap

Whether a common-law partner automatically inherits on intestacy is one of the most consequential differences between provinces, and it is a common misunderstanding.

• Ontario: the Succession Law Reform Act's intestate succession rules use "spouse" in the sense of a legally married spouse. A common-law partner, however long the relationship, does not automatically receive the preferential share or the descendants' split. A surviving common-law partner may be able to apply as a dependant for support from the estate, but that is a separate, discretionary process, not an automatic inheritance.
• British Columbia: WESA defines "spouse" to include a person who lived with the deceased in a marriage-like relationship for at least two years, or with whom the deceased had a child, unless the relationship had ended before death. A qualifying common-law partner inherits on intestacy in BC the same as a married spouse.
• Alberta: the Wills and Succession Act uses "adult interdependent partner," a status generally available after three years of cohabitation, or sooner with a relationship of interdependence agreement or a shared child, and treats a qualifying partner the same as a married spouse for intestacy.
• Saskatchewan: the Intestate Succession Act, 2019 includes a cohabiting common-law spouse, generally two years of cohabitation or a shorter period with a child, within the definition of "spouse."

Because the rules vary this much, a common-law couple should not assume their home province treats them the way another province would. This is one of the clearest reasons a will matters, even for couples who consider themselves as good as married.

No Living Relatives: Escheat to the Crown

If a search turns up no surviving spouse, descendants, parents, siblings, nieces, nephews, or other next of kin within the degree of relationship the statute recognizes, the estate does not stay in limbo. It escheats, meaning it passes to the Crown in right of the province, for example under Ontario's Escheats Act, 2015, or British Columbia's Escheat Act. Provinces generally have a process allowing a person who later comes forward with a valid claim of kinship to apply for the property, but only within a limited window. This outcome is rare in practice, because provincial succession law casts a wide net of next of kin before reaching escheat.

Quebec: Civil Code Devolution

Quebec does not have an Intestate Succession Act. Succession without a will, known as "succession ab intestat," is governed by the Civil Code of Quebec's rules on legal devolution. The Code divides the estate by fixed fractions depending on which categories of relatives survive.

• Spouse and descendants: the spouse receives one third of the estate; descendants share the remaining two thirds.
• Spouse and privileged ascendants or collaterals, meaning parents or siblings, but no descendants: the spouse receives two thirds; the privileged ascendants and collaterals share the remaining one third.
• Spouse only, no descendants or privileged ascendants or collaterals: the spouse receives the entire estate.
• No spouse: descendants inherit everything; if none, ascendants and collaterals inherit under a further set of Civil Code rules.

"Spouse" in Quebec's Civil Code devolution rules means a married or civil union spouse. Quebec does not extend intestate succession rights to a common-law partner, known as a "conjoint de fait," regardless of relationship length. A common-law partner in Quebec has no automatic right to inherit without a will, an even sharper trap than Ontario's. A liquidator, the Quebec equivalent of an executor or estate administrator, is appointed to settle the succession, typically one of the heirs unless the court appoints someone else.

Applying to Administer an Intestate Estate

When there is no will, there is no named executor. Instead, an interested person, usually the surviving spouse or an adult child, applies to the court for authority to administer the estate: a Certificate of Appointment of Estate Trustee Without a Will in Ontario, Letters of Administration in most other common law provinces, or in Quebec, appointment as liquidator where the heirs cannot agree. The court-appointed administrator has the same basic duties as an executor: locate and value assets, pay debts and taxes, and distribute what remains according to the applicable intestate succession formula, not according to the deceased's unwritten wishes.

Why This Matters: Make a Will

Intestacy law cannot account for a blended family, a common-law partner, a favourite charity, specific bequests, or a preferred guardian for minor children. It applies a one-size-fits-all formula that may not match what the deceased would have wanted, and it can leave a surviving common-law partner with far less than a surviving spouse would receive in the same province. Anyone in a common-law relationship, anyone with a blended family, or anyone who wants a say in who inherits should make a valid will.

See our guide to making a will in Canada for the formalities each province requires, and executor duties in Canada for what the person settling an estate, with or without a will, actually has to do. Our wills and probate hub covers the rest of the Canadian estate planning picture, including probate fees by province.

Disclaimer: This article provides general information about Canadian intestate succession law and is not legal advice. Provincial rules, dollar amounts, and thresholds change over time; confirm current figures with the applicable provincial statute or a licensed lawyer or notary before making decisions about an estate.