Is a Spouse's Home Part of the Estate When They Die in Ontario?

After a spouse dies, the house is often the biggest question. Is it part of the estate, does it need probate, and can you stay in it? The answer depends on how the home was owned and on rights the Family Law Act gives to a surviving spouse.

This article walks through the main points in Ontario so you know what to ask and which deadlines to watch.

Ownership decides whether the home goes through the estate

Ontario guidance says assets held jointly or with a designated beneficiary pass according to how they are owned or designated, and probate is not always required for them. By contrast, if the deceased owned real property in their own name, the estate normally has to be probated.

If the home was in the deceased's sole name, the Land Titles Act generally requires the estate trustee to obtain a certificate of appointment before dealing with the land. Whether the home was in one name, in both names, or held with someone else is the first thing to confirm, usually from the title documents.

When the home was shared with someone other than the spouse

If a spouse dies owning the matrimonial home as joint tenant with someone other than their spouse, the joint tenancy is deemed severed immediately before death. That share therefore forms part of the estate. This can surprise a co-owner, such as an adult child or sibling, who expected to take the whole property.

The Family Law Act election for a surviving married spouse

A surviving married spouse must elect either to take under the will (or intestacy) or to claim an equalization payment of one-half the difference in net family property. The election must be filed with the Estate Registrar for Ontario within six months of the death. If it is not filed, the spouse is deemed to have elected to take under the will or intestacy.

No distribution may be made within six months of a spouse's death unless the surviving spouse consents in writing or the court authorizes it. Because the election can change what you receive, it is worth getting advice and financial information before the six months run out.

Staying in the home, and when there is no will

A spouse with no interest in the matrimonial home who was living there at the death may stay there rent-free for 60 days. Longer-term rights depend on ownership, the will and the election.

Without a will, a spouse with no surviving issue takes the whole estate. A spouse with issue takes the preferential share, then one-half of the residue if there is one child, or one-third if there is more than one child. The preferential share is $350,000 for deaths on or after March 1, 2021.

• Separated spouses: a spouse has no intestacy entitlement if the spouses were separated at death under the statutory test.
• Common-law partners: a common-law spouse does not inherit under the Succession Law Reform Act when there is no will, although a common-law partner may still be granted administration.
• Dependants: the court may order support from the estate for a dependant who was not adequately provided for, generally on an application made within six months of the grant of the certificate.

What to do next

• Get the title to the home and any mortgage statements to confirm how it was owned.
• Find the will, or confirm there is none.
• Note the date of death and mark the six-month election date.
• Ask a lawyer to explain what each choice means for you before you elect.
• Do not agree to a distribution in the first six months without legal advice.

If you are a common-law partner, separated, or sharing title with someone else, your position can differ from the general rules, so confirm it with a lawyer.

Frequently asked questions