Right of Survivorship in Canada: How Ontario Treats Joint Ownership

If you search for the right of survivorship in Canada, you will find that the rules are set by each province. This article explains how Ontario treats joint ownership of land and accounts, so you can see what usually happens when one owner dies.

The short version is that survivorship can move property outside the estate, but it is not as automatic as many people assume. The exceptions matter, and they often decide who ends up with the property.

What survivorship means in Ontario

Right of survivorship means that when one joint owner dies, their interest passes to the surviving joint owner or owners. In Ontario, the law says property goes to a deceased person's estate trustee only if no one else has a right to take it by survivorship.

That is why survivorship overrides a will. A deceased joint tenant's interest goes to the surviving joint tenant or tenants, not to the people named in the will. This is true whether or not there is a will.

Two names on title do not always mean survivorship

For land, Ontario starts from the opposite assumption. Land given to two or more people is held as tenants in common, unless the document shows on its face that they are to take as joint tenants. A tenant in common's share does not pass by survivorship.

There are special cases to know about:

• Executors and trustees: the tenancy-in-common presumption does not apply to land given to them.
• Spouses and partners: the presumption also applies where one co-owner is the other's spouse, and for this rule spouse includes a Family Law Act spouse and two people living together in a conjugal relationship outside marriage. They hold as joint tenants only if the deed says so.
• Owners by possession: people who acquire land by length of possession hold as tenants in common.

An owner can also put a child or partner on title as a joint owner by conveying the property to themselves jointly with that person.

Joint bank accounts

Federal guidance notes that many joint accounts include the right of survivorship, and the surviving holder becomes the account owner. Any named holder can withdraw at any time, and if one holder goes bankrupt or has financial problems, creditors could make claims on the money.

Between spouses, money on deposit in both names is deemed held as joint tenants. Beyond that, the details depend on the account documents and the bank, so it is sensible to ask the institution what happens if one holder dies.

Exceptions that can pull property back into the estate

Joint owners can also be forced to deal with the property. Any joint tenant or tenant in common of Ontario land may be compelled to make or suffer partition or sale.

Tax can apply even when probate does not

Survivorship does not remove income tax. A deceased person is considered to have sold all their capital property just before death, which may produce a capital gain on their final return, even if the property passes by survivorship. Property transferred to a surviving spouse or common-law partner who is resident in Canada can roll over without immediate gain, if the property is locked in for them within 36 months of death.

Adding a child to title during your life can also have tax consequences. A gift of capital property is treated as a sale at fair market value, and the automatic rollover applies to gifts to a spouse or common-law partner, not to children (except qualifying farm or fishing property).

What to do next

• Find the deed or parcel register and read how the owners hold title.
• Gather the account agreements for any joint bank or investment accounts.
• Note whether the property was a matrimonial home and who the owners were.
• Ask an accountant about the final tax return if the property has grown in value.
• Speak with a lawyer before moving or changing title, because the exceptions above depend on the facts.

Frequently asked questions