What Is Right of Survivorship in Canada? Ontario's Rules Explained

If you search for right of survivorship in Canada, you will find many answers that do not agree. That is because each province sets its own property and estate rules, and the details can differ from one place to the next.

This article explains how survivorship works in Ontario, where the main rules and exceptions sit, and why you should not assume a rule from another province applies to your property. It is general information, and a lawyer can confirm how it applies to you.

What right of survivorship means

Right of survivorship is a feature of some co-ownership arrangements. When one co-owner dies, their interest passes automatically to the surviving co-owners instead of going to the deceased's estate. Ontario's Court of Appeal calls survivorship the critical distinction between a joint tenancy and a tenancy in common.

In Ontario, the right applies only to interests held in a joint tenancy. Property that does not pass by survivorship goes to the deceased's personal representative.

How Ontario handles it

• If you own property as a joint tenant and die, it automatically passes to the surviving owner.
• Estate assets are distributed depending on how they are owned, and the Province lists jointly owned money and property as examples.
• A will cannot by itself sever a joint tenancy, because survivorship takes precedence over a will.
• Estate Administration Tax excludes assets in joint ownership that automatically become the other owner's assets.

For land, the survivor generally updates the registry. In Land Titles, a survivorship application under section 123 of the Land Titles Act states that the applicant held the property as joint tenant with the deceased, is entitled as surviving joint tenant, and gives the date of death.

Why rules differ across Canada

Property, land registration and estate rules are mostly provincial matters. That means the names of ownership types, the paperwork, the tax on estates and the treatment of unmarried partners can differ between Ontario, Quebec and the other provinces. Quebec in particular has its own legal system, so a rule that applies in Ontario should not be assumed to apply there, and the reverse is also true.

If you own property in more than one province, or you are moving to or from Ontario, the safest approach is to have each property reviewed under the law of the province where it sits. This article covers Ontario only.

Spouses, common-law partners and family homes

Ontario says a common-law spouse does not inherit under the Succession Law Reform Act on an intestacy, and that Family Law Act equalization and the election are for married spouses. This is one reason joint ownership matters to unmarried couples, since survivorship passes property outside the will and intestacy rules.

For married spouses there are extra rules. If a spouse dies owning a family residence as a joint tenant with a third party who is not their spouse, the joint tenancy is deemed severed immediately before death. For deaths on or after March 1, 1986, a survivorship application must include a Family Law Act statement signed by a solicitor.

Tax points that follow the property

Federal income tax rules apply across the country. On death, a person is considered to have disposed of property immediately before death at fair market value, which may produce a gain or loss on the final return. Property passed to a surviving spouse or common-law partner resident in Canada may not result in a capital gain or loss, and the legal representative may elect out of that rollover.

For the rollover, the property must be locked in for the spouse or common-law partner no later than 36 months after death, and an extension can be requested before the deadline. How these rules apply to a joint owner who is not a spouse is worth confirming with an accountant.

What to do next

• List every property or account you own and where each is located.
• Check how each is held on title or on the account documents.
• Note whether co-owners are married, common-law or unrelated.
• For any property outside Ontario, ask a lawyer in that province how the local rules work.
• For Ontario property, ask an Ontario estate lawyer how survivorship interacts with your will and your family situation.

Frequently asked questions