What happens to the matrimonial home if one spouse dies during separation but before the divorce is finalized?

Because the couple is still legally married at the time of death, the surviving spouse's rights under Ontario's Family Law Act generally remain in effect, even though they had separated and were in the process of divorcing. This matters for the matrimonial home specifically, since the surviving spouse's rights around possession, and their position relative to the deceased spouse's estate, are affected differently than if the divorce had already been finalized before death.

The Family Law Act also gives a surviving spouse, in this kind of situation, the ability to choose between receiving what they're entitled to under the deceased spouse's will or on intestacy, or instead pursuing an equalization claim against the estate as they generally could have if the marriage had ended by separation alone, whichever turns out to be more beneficial to them. This creates real complexity where the estate includes the matrimonial home, since the trustee needs to account for the surviving spouse's rights and potential claim before finalizing a sale or distribution. Given how much can turn on the exact timing and the specific facts, anyone facing this situation, whether as the surviving spouse or the estate trustee, should get legal advice promptly.