- If you and your spouse held the home as joint tenants, it generally passes to you by survivorship and not under the will.
- Spouses hold as joint tenants only if the deed says so, since the default for spouses is tenants in common.
- Survivorship does not end other rights, such as the equalization election, which has a six-month deadline.
Losing a spouse is hard enough without wondering whether the family home is safe. If you owned it together, the answer often depends on one small detail: how the two of you held title.
This article walks through what usually happens to a jointly owned matrimonial home in Ontario, how the title is cleaned up, and which other claims can still arise. It is general information, and a lawyer can confirm how it applies to your property.
Joint tenants or tenants in common?
Property that passes by survivorship goes straight to the surviving owner and does not become part of the estate. This applies whether or not there is a will.
But being on title together is not enough. Where one co-owner is the other's spouse, the presumption is that they hold as tenants in common, and for this rule spouse includes a common-law partner. Spouses hold as joint tenants only if the deed says so. A tenant in common's share does not pass by survivorship and is dealt with through the estate.
If you are unsure how title is held, the parcel register shows it. Ontario land records are searched through OnLand, and ServiceOntario cannot search or explain the records for you.
Getting your name alone on title
If the land is in the land titles system, the land registrar may, on an application with the required evidence, delete the deceased owner's name from the parcel register. This is a land registry step and not a probate application. A house held in true joint tenancy by a surviving owner can be dealt with without a Certificate of Appointment of Estate Trustee.
The application can include statements that you held the property as joint tenant with the deceased, that you are entitled by survivorship, and the date of death. Where the death was on or after March 1, 1986, a Family Law Act statement is also needed, and only a solicitor may make and sign it. Proof of death is required where no death declaration was recorded.
Mortgages and lender requirements are separate. They depend on your mortgage terms, so contact your lender and ask a lawyer how the loan is affected.
When the joint owner is not the spouse
Sometimes a spouse owned the home as a joint tenant with someone else, such as a child, and not with the other spouse. In that case, the joint tenancy is deemed severed immediately before death, and the deceased's share goes into the estate instead of to the child by survivorship.
If you were living in the home but had no interest in it, you may stay there, rent free, against the estate for 60 days after the death.
Claims that can still apply
If you were married, you may elect equalization of net family property. If the deceased's net family property was larger, you are entitled to one-half the difference. If there is a will, you must choose between the will and that entitlement. Property you receive by survivorship is credited against the entitlement, unless a written instrument says you receive it in addition.
Unmarried partners cannot elect equalization. Separated spouses may also lose some intestate entitlements, including where they lived separate and apart for three years immediately before death because the marriage broke down.
Others may also have claims. A dependant can apply for support, and joint property held at death can be counted toward the net estate for that claim. On the tax side, a deceased person is considered to have sold their capital property just before death, even if it passes by survivorship. A transfer to a surviving spouse or common-law partner who is resident in Canada can roll over without immediate gain in the right circumstances, and some or all of the gain on a principal residence may be exempt.
| Deadline or rule | Detail |
|---|---|
| Equalization election | File with the Estate Registrar for Ontario within six months after the death |
| No election filed | You are deemed to have elected to take under the will, unless the court orders otherwise |
| Distributions | None may be made in the estate within six months of the death |
What to do next
- Get a copy of the parcel register and the deed to see how title is held.
- Find out whether there is a will and whether anyone else is on title.
- Note the date of death, since the six-month deadline starts there.
- Ask your lender how it handles the loan.
- Speak to a lawyer, and an accountant for the tax side, before deciding on the equalization election.
Frequently asked questions
Does the home go through probate if we were joint tenants?
Generally not. A house held in true joint tenancy by a surviving owner can be dealt with without a Certificate of Appointment of Estate Trustee. You deal with title through a land registry application.
What if my spouse and I are both on title but the deed does not say joint?
Spouses are presumed to hold as tenants in common unless the deed says otherwise. Your spouse's share would then not pass by survivorship.
Can I still claim equalization if I receive the house by survivorship?
If you are a married spouse, yes, but what you receive by survivorship is credited against the entitlement. The credit does not apply if a written instrument says you receive it in addition.
Does a common-law partner get the same rights?
Not for everything. Unmarried partners cannot elect equalization, though they are treated as spouses for the tenancy presumption and for dependant support in the circumstances described.
Sources
- Estates Administration Act, R.S.O. 1990, c. E.22, s. 2(1) (e-Laws) — Ontario e-Laws
- Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, s. 13(2)-(3) (e-Laws) — Ontario e-Laws
- Family Law Act, R.S.O. 1990, c. F.3, s. 26(1) (e-Laws) — Ontario e-Laws
- Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 1(1) (e-Laws) — Ontario e-Laws
- Land Titles Act, R.S.O. 1990, c. L.5, s. 123 (e-Laws) — Ontario e-Laws
- Ontario Land Registration Bulletin No. 2000-6, Estate Documents — files.ontario.ca
- Ontario.ca, Land Registration Bulletin 2000-6 Estate documents — ontario.ca
- Ontario Land Registration memo EM1996-06 — files.ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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