Does Separation or Divorce End Right of Survivorship on Jointly Owned Property in Ontario?

How a divorce or separation affects a joint tenancy depends on your situation, so it is worth confirming with a lawyer. Whether survivorship applies depends on how the property is held, and how separation affects your own joint tenancy depends on your situation, so it is worth confirming with a lawyer. Property that passes by survivorship goes straight to the surviving owner, not into the estate, and a will does not override that.

The Family Law Act can still change the picture. If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person, such as a child, and not with the other spouse, the joint tenancy is deemed severed immediately before death, and the share goes into the estate. A married survivor may also elect equalization, and property received by survivorship is credited against it unless a written instrument says otherwise. Unmarried partners cannot elect equalization.

Separately, the intestate spousal entitlements do not apply if the spouses were separated at death, and one way to meet that test is living separate and apart for three years immediately before death because the marriage broke down. Because the facts matter, including how title is held and whether the couple was married, speak to a lawyer.