A Will is a means by which you exercise control over your estate after you die. A Will identifies your beneficiaries and ensures that they will share in your estate according to your final wishes. A Will can also minimize the delay, costs and expenses that can accrue if you die without a Will. In these cases - known as intestacy - no action is taken until the court appoints an administrator. The administrator then acts as the executor of your estate, satisfies all outstanding debts and expenses arising from the disposition of your assets and then distributes the rest - not according to what your wishes were - but according to the laws of your province that govern the distribution of estate property.

Division of Assets under Intestate Succession

The laws of each province are specific regarding the division of property when a person dies without a Will. Most provinces designate a spouse’s share - a portion of the estate that will automatically devolve to the surviving partner. Other family members - children, grandchildren, and other blood relatives - are provided for only if the value of the estate exceeds the spouse’s share. But here’s the kicker as far as lesbians and gay men are concerned: the laws of intestacy do not recognize same-sex partners.

In Ontario, Bill 5 excludes gays and lesbians from the benefits of property rights afforded to heterosexual couples under the Family Law Act, including exclusive right to the Matrimonial home and the division of property in the event of marital breakup. And while the amendments to the Succession Law Reform Act permit the same-sex partner to become executor of an estate, they do not extend the division of property on death of the same-sex partner or include same-sex partners in the laws of intestacy. The Act does afford dependant’s relief provided that cohabitation and economic dependency is proven, but that is a far cry from the inheritance rights enjoyed by opposite-sex partners.

Thus, in the absence of a valid Will, the estate of a lesbian or gay man will be divided among his or her surviving biological family regardless of how remote the relationship might be; the laws regarding this matter are inflexible - under no circumstances will a court-appointed trustee recognize a surviving same-sex partner.

The statutes regarding the rights of same-sex couples vary with jurisdiction and changes federally may be coming, but until then the message for lesbians and gay men is clear; make your wishes regarding inheritance of property known through the creation of a legal Will.