- Ontario's Family Law Act treats the matrimonial home differently from most other property spouses own.
- If the home is held in joint tenancy with your spouse, it generally passes automatically to the surviving joint owner by right of survivorship the moment you die — regardless of what…
- Even where the home is not held jointly, a surviving married spouse generally has an independent right to elect, within six months of death, to take an equalization payment under the…
The family home is usually the most valuable — and most emotionally loaded — asset in a second marriage. It is where a new spouse lives, but it may also be the one thing you most want to see reach your children from an earlier relationship. Ontario's matrimonial home rules in a second marriage can quietly undo a plan that looks perfectly reasonable on paper.
Here are the traps that catch blended families most often, and how to plan around them.
Why the Matrimonial Home Gets Special Treatment
Ontario's Family Law Act treats the matrimonial home differently from most other property spouses own. In a second marriage, that special treatment does not disappear just because one spouse owned the home before the marriage, or because a will says something specific about who should get it. The home can end up governed by more than one set of rules at once — property law, the will, and family law rights — and they do not always point the same direction.
Trap #1: Joint Tenancy Overrides the Will
If the home is held in joint tenancy with your spouse, it generally passes automatically to the surviving joint owner by right of survivorship the moment you die — regardless of what your will says. A will that leaves "the house" to your children from a first marriage has no effect on a home held this way; the will simply does not reach an asset that already passed outside the estate.
This is one of the most common and most misunderstood traps in blended-family planning: people assume the will controls everything, when in fact how title is held can override it entirely for this specific asset.
Trap #2: The Equalization Election Can Reach the Home's Value
Even where the home is not held jointly, a surviving married spouse generally has an independent right to elect, within six months of death, to take an equalization payment under the Family Law Act instead of what the will provides. If your estate plan leaves your spouse a smaller interest in the home (or in the estate generally) than an equalization payment would provide, they may be able to choose the equalization route instead — which can reshape the outcome your will was designed to produce.
Trap #3: Assuming an Old Plan From Before the Second Marriage Still Applies
Since January 1, 2022, getting married no longer automatically revokes an existing will in Ontario, and that change is not retroactive to marriages that happened before that date. In practice, this means a will made years before a second marriage — one that may never have contemplated a new spouse at all — can still be a perfectly valid, legally binding document today, even though it says nothing about the person you are now married to. An outdated will does not fix itself just because your circumstances changed.
How Ownership Structure Shapes the Outcome
| Ownership structure | What generally happens on death | Does the will control it? |
|---|---|---|
| Sole ownership (one spouse only) | Forms part of that spouse's estate | Generally yes, subject to any spousal election |
| Joint tenancy (both spouses) | Passes automatically to the surviving joint owner | Generally no |
| Tenants in common | Each owner's share forms part of their own estate | Generally yes, for that owner's share |
Getting the Home and the Will to Agree
- [ ] Confirm exactly how title to the home is currently held
- [ ] Revisit your will after a second marriage, even though marriage no longer automatically revokes it
- [ ] Consider whether a marriage contract should address the home specifically
- [ ] Talk to a lawyer about how the will and Family Law Act rights interact before assuming either document controls on its own
Frequently asked questions
If my spouse and I own the home jointly, can my will still leave it to my children?
Generally, no. A gift of jointly held property in a will is usually overridden by the right of survivorship, which passes the home directly to the surviving joint owner outside the estate. Changing how title is held is a separate step from changing the will.
Does my second spouse automatically get to stay in the home after I die?
There is no single blanket answer — it depends heavily on how the home is owned, what the will says, and whether a Family Law Act election comes into play. This is exactly the kind of question worth reviewing with a lawyer for your specific facts.
Can a marriage contract fix this?
A marriage contract can help address expectations and, depending on how it is drafted, certain property rights — but it works alongside updating your will and confirming how title is held, not as a replacement for either.
Does getting remarried automatically cancel my old will?
No. Since January 1, 2022, marriage no longer automatically revokes an existing will in Ontario, and that change does not apply retroactively to marriages before that date. This is exactly why a will made before a second marriage needs a deliberate review, rather than an assumption that it updated itself.
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