SURPRISE! Discovering Your Deceased Spouse Had Another Family or Unknown Children: How It Affects the Estate and Will

Finding out that your deceased spouse had another relationship, or even children you never knew about, is one of the most painful revelations imaginable. Beyond the emotional betrayal, this discovery creates serious legal and financial consequences for the estate.

When There Is No Will: Intestacy and Hidden Families


If your spouse dies without a will, Ontario’s Succession Law Reform Act (SLRA) governs who inherits. The law sets out a clear order of priority:

  • The married spouse receives a preferential share (currently $350,000).
  • The remainder of the estate is divided between the spouse and the deceased’s children.
  • If there is no spouse, the estate passes to the children; if no children, then to parents, siblings, or next of kin.
However, if the deceased had children from another relationship, even ones you didn’t know existed, they are legally entitled to share equally with other biological or adopted children. That means your spouse’s secret child from a previous relationship could legally inherit part of the estate, reducing what you and your known children receive.

When There Is a Will: Unequal Treatment and Dependant’s Relief


Even if your spouse left a will, new or unknown dependants may still have legal claims. If a will excludes a child or common-law partner who was financially dependent on the deceased, Ontario law allows them to bring a Dependant’s Support Application under Part V of the SLRA.

Courts can order that:

  • A child not named in the will receives support from the estate, even if born outside marriage.
  • A common-law spouse or partner receives adequate maintenance.
  • An estate be frozen or redistributed until all dependants are accounted for.

Case Study: Estate of Thiodore Moiseas, Lessons from a Disputed Family Tree


The 2021 Ontario case Stoyan v. Johnson, 2021 ONSC 7483 (CanLII), shows how courts treat uncertain or disputed family connections. In the Estate of Thiodore (Ted) Moiseas, the deceased’s spouse and son had predeceased him, leaving no clear heirs. Competing relatives in Canada and Macedonia claimed to be the closest next of kin, and one sought a Benjamin Order (a court declaration that untraceable heirs be presumed dead so the estate can be distributed).

The court refused the request. The applicant’s genealogical evidence was inconsistent, incomplete, and based on family lore. Key documents such as birth, marriage, and death certificates were missing, and the supposed kinship link was unproven. The judge found that without solid genealogical proof, no distribution could occur. The court ordered the prior trustee’s estate to pass accounts and pay the funds into court until rightful heirs were identified, with the Office of the Children’s Lawyer representing unknown beneficiaries.

Takeaway: Even if you believe you are the rightful heir, family stories are not evidence. The court requires verified documentation and professional genealogical proof before declaring others predeceased or distributing an estate.

Hidden or Unknown Children: Proving or Defending a Claim


If a person claiming to be a child of the deceased comes forward after death, the estate trustee (and any existing heirs) must verify the claim. This often involves:

  • DNA testing or genetic evidence
  • Birth certificates or official records establishing parentage
  • Affidavit evidence showing the deceased acknowledged or supported the child
  • Financial records demonstrating dependency
Conversely, if you are a surviving spouse who learns of an unknown child, you may wish to:

  • Request a stay of distribution until the child’s claim is proven
  • Seek court directions under Rule 75.06 or s. 29 of the Estates Act
  • Appoint a neutral estate trustee to ensure fairness among potential heirs.

Protecting Your Rights as a Surviving Spouse


If your spouse’s infidelity or hidden family surfaces only after death:

  • You remain entitled to your spousal share under the SLRA or to elect for equalization under the Family Law Act.
  • You can demand full financial disclosure and accounting of the estate before any distribution.
  • If necessary, you can apply to the Superior Court of Justice to restrain distribution or compel a passing of accounts.

How Derfel Estate Law Can Help


Navigating these issues requires both compassion and precision. At Derfel Estate Law, we:

  • Investigate hidden heirs and disputed paternity claims
  • Represent surviving spouses, children, and dependants in Ontario estate litigation
  • Prepare and defend Dependant’s Support Applications
  • Pursue or defend Benjamin Orders when heirs cannot be found
  • Guide executors through complex cross-border heirship investigations.

Key Takeaway


When a hidden family or unknown child emerges, Ontario estate law does not turn a blind eye; it demands proof, transparency, and fairness. Courts will not distribute an estate until every potential heir has been accounted for. If you’ve discovered that your spouse had another family, an unknown child, or dependants you never knew existed, or if you believe you’ve been unfairly excluded from an inheritance, you need experienced guidance.

Frequently Asked Questions (FAQs)

 
  1. Can unknown or secret children inherit in Ontario?
Yes. Under Ontario’s Succession Law Reform Act, biological and legally adopted children have equal inheritance rights, even if the surviving family did not know of their existence.
  1. What if the deceased had a common-law partner and a secret spouse?
Only legally married spouses automatically inherit under Ontario intestacy law. Common-law partners may still claim support under the SLRA if they were financially dependent on the deceased.
  1. Can DNA testing be ordered after death to prove a child’s claim?
Yes. Courts can order posthumous DNA testing or permit comparison of genetic material to establish parentage, particularly when estate assets are in dispute.
  1. What happens if I discover my spouse’s other family after probate is granted?
You can apply to the court to suspend or vary the Certificate of Appointment, seek an accounting, and, if needed, bring a dependant’s relief or will challenge application.
  1. What is a Benjamin Order?
A Benjamin Order is a court declaration that allows an estate to be distributed when certain heirs cannot be located or proven to exist. Courts only grant it after exhaustive searches and credible genealogical evidence.
  1. How can I protect my rights if another family makes a claim?
Contact an experienced estate litigation lawyer immediately. They can secure the estate assets, request a passing of accounts, and ensure your interests are protected while the claims are verified.
  1. Does Ontario recognize children from relationships outside Canada?
Yes, if legitimate documentation or proof of parentage can be provided. International claims require certified translations and often professional genealogical support.
  1. Can a will be changed after death to include a forgotten dependant?
A will itself cannot be altered, but the court can order support or redistribution from the estate to provide for excluded dependants under the SLRA.
  1. How long do I have to make a claim against an estate?
Generally, dependant’s support claims must be brought within six months of probate being granted, but courts can extend this period in exceptional cases.
  1. What should executors do if they suspect unknown heirs exist?
Executors must take reasonable steps to locate and notify all potential beneficiaries. Advertising in relevant regions and hiring a professional genealogist are often necessary steps.
 

Contact Derfel Estate Law


At Derfel Estate Law, our lawyers, including David Derfel and Charlie Fuhr are experienced in estate disputes. We understand the emotional and financial strain these cases cause and are committed to finding cost-effective, compassionate solutions that protect your rights. Contact us today to schedule a confidential consultation.