Spouse Died and the Home Was in Both Names in Ontario: Next Steps

When a spouse dies and the home was in both names, most people want to know one thing: is the house still mine, and do I have to go to court?

Often the answer is simpler than people fear, but it depends on how title was taken. Here is how the process generally works, which deadlines may apply, and what to do first.

Does the home pass to you automatically?

Property held with a right of survivorship does not go into the estate. It goes to the surviving owner, even if the will says something different.

But two names on title do not always mean survivorship. Land given to two or more people is presumed to be held as tenants in common unless the document shows they take as joint tenants. That presumption applies between spouses, including unmarried partners in a conjugal relationship, so they hold as joint tenants only if the deed says so. A deceased tenant in common's share does not pass by survivorship. Check the deed and the parcel register first.

What must be filed if it was joint tenancy

The surviving owner can apply to the land registrar to delete the deceased's name from the parcel register. The application needs the evidence the Director of Titles specifies. It is a land registry step, not a probate application.

• Forms 42 and 43 of Regulation 690, or statements, may be used.
• The statements say you held the property as joint tenant with the deceased, are entitled by survivorship, and give the date of death.
• For deaths on or after March 1, 1986, a Family Law Act statement is needed, and only a solicitor may make and sign it.
• Proof of death will be required if no death declaration was recorded in the registry system.

A house held in true joint tenancy by a surviving owner can be dealt with without a certificate of appointment of estate trustee. Jointly owned property that passes automatically to the other owner is also left out of estate value for estate administration tax.

If your name was not on title

A spouse who has no interest in the matrimonial home but is living in it when the other spouse dies may stay there, rent free, against the estate for 60 days after the death. After that, what happens depends on the will, the estate and your other rights, so get advice quickly.

There is also a special rule where the deceased held the matrimonial home as a joint tenant with someone other than their spouse, such as a child. The joint tenancy is deemed severed immediately before death, and the deceased's share goes into the estate.

Deadlines and choices for a married survivor

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 of the difference. If there is a will, you must choose between taking under the will and taking that entitlement.

Property you receive by survivorship is credited against your equalization entitlement. That credit does not apply if a written instrument says you receive the property in addition to the entitlement.

Taxes also matter. A deceased person is treated as having sold their capital property just before death, even if it passes by survivorship. Property transferred to a surviving spouse or common-law partner resident in Canada can roll over without immediate gain in the cases the Income Tax Act sets out. Some or all of the gain on a principal residence may be exempt. An accountant can confirm how this applies to you.

What to do first

• Order several death certificates.
• Get the parcel register through OnLand and read how title was held.
• Find the deed, the will and any marriage or separation documents.
• Notify the mortgage lender, insurer and bank, and ask the bank what it needs from a surviving joint holder.
• Note the six-month date from the death for any equalization election.
• Ask a lawyer to prepare the survivorship application and confirm whether an estate certificate is also needed.

If you were separated, or the home was held in some other way, the answers may differ, so confirm your situation with a lawyer before you sign anything.

Frequently asked questions