- Property that passes by survivorship goes straight to the surviving owner and does not form part of the estate that the will controls.
- Owning land with someone else does not automatically create survivorship, and spouses hold as joint tenants only if the deed says so.
- Even where survivorship applies, exceptions such as the matrimonial home, support claims and tax can still affect the result.
After a death, you may hear that an asset passes by right of survivorship. It is a short phrase with large consequences, because it can mean the asset never becomes part of the estate at all.
This article explains in plain words what survivorship means in Ontario, how it interacts with a will, and where the exceptions are. Your situation may turn on the exact wording of a deed or account, so a lawyer can confirm how it applies.
What right of survivorship means
Right of survivorship means that when one co-owner dies, their interest goes to the surviving co-owner or co-owners. Under Ontario's Estates Administration Act, property passes to the estate trustee (personal representative) only if no other person has a right to take it by survivorship.
So survivorship property goes straight to the surviving owner, whether or not there is a will.
Survivorship overrides the will
The rule that property passes to the personal representative applies despite a will only to property with no right of survivorship attached. A deceased joint tenant's interest goes to the surviving joint tenant or tenants, not to the beneficiaries named in the will.
This is why a house or account can go to one person even though the will leaves everything to someone else. The will deals only with what is actually in the estate.
When survivorship does and does not apply
Being on title together does not by itself create survivorship. Land given to two or more people is generally held as tenants in common unless the document shows on its face that they take as joint tenants. A tenant in common's share does not pass by survivorship.
| Situation | What the rules say |
|---|---|
| Two or more owners, deed silent | Presumed tenants in common |
| Spouses or common-law partners | Joint tenants only if the deed says so |
| Executors or trustees | The tenancy-in-common presumption does not apply |
| Owners by length of possession | Tenants in common |
If the owners die at the same time, or it is uncertain who survived, joint tenants and joint account holders are generally deemed to hold as tenants in common unless a contrary intention appears, and each share passes through that person's own estate.
Limits and exceptions to know about
- Matrimonial home: if a spouse dies owning a matrimonial home as a joint tenant with someone other than the other spouse, such as a child, the joint tenancy is deemed severed immediately before death and the share goes into the estate.
- Support claims: for a dependant's support claim, property held by the deceased and another as joint tenants, and certain joint deposits, can be treated as part of the net estate.
- Adult children added to accounts: an adult child added to a parent's asset without paying for it is presumed to hold it in trust for the parent, and on death for the estate, unless a gift is shown.
- Income tax: the deceased is considered to have sold their capital property just before death, even if it passes by survivorship.
A joint owner can also end a joint tenancy during life, for example by a deed under the Conveyancing and Law of Property Act, or a court can order partition or sale.
What to do next
- Find the deed or account documents and check how title or ownership is described.
- Search the parcel register for land if you are unsure whether it was held jointly.
- Ask the bank what happens when a holder dies.
- Speak with a lawyer if the property was the matrimonial home, a child was added, or family members disagree.
Frequently asked questions
Does a will override right of survivorship?
No. Survivorship property goes to the surviving owner, not to the will's beneficiaries. The will governs only property that actually passes into the estate.
Are spouses automatically joint tenants?
No. Spouses, including unmarried partners living together in a conjugal relationship, hold as joint tenants only if the deed says so.
Can a joint account go to the estate instead of the survivor?
Sometimes. A survivor may need to show the deceased intended the funds as a gift, and heirs may challenge it. An adult child added to an account is presumed to hold it in trust for the parent unless a gift is shown.
Does survivorship avoid tax on death?
Not necessarily. The deceased is considered to have sold capital property just before death, even if it passes by survivorship. A rollover is available for a surviving spouse or common-law partner in the circumstances the Canada Revenue Agency sets out.
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(1) (e-Laws) — Ontario e-Laws
- Partition Act, R.S.O. 1990, c. P.4, ss. 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. 72(1)(c)-(d) (e-Laws) — Ontario e-Laws
- Land Titles Act, R.S.O. 1990, c. L.5, ss. 121-122 (e-Laws) — Ontario e-Laws
- Ontario.ca, Search land property records — ontario.ca
- Pecore v. Pecore, 2007 SCC 17 (CanLII) — canlii.org
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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