Spouse Dies: Is the Matrimonial Home Always Survivorship in Ontario?

When a spouse dies, the family home is usually the biggest question. Many people assume it simply becomes the survivor's, and often it does. But the result depends on several details, including how the home was held and who the co-owners were, not only on the fact that you were married.

This article explains how title, the Family Law Act and the estate fit together on a matrimonial home in Ontario. It is general information, not advice on your situation. Because small details of title and timing can change the outcome, a lawyer can confirm what applies to you.

Survivorship depends on how title was held

In Ontario, if you own property as a joint tenant, the property automatically passes to the surviving owner when you die. The Province also notes that how assets are owned affects how an estate is distributed, and it lists property jointly owned with another person as an example.

Survivorship is the key difference between a joint tenancy and a tenancy in common. On a joint tenant's death the interest passes to the surviving co-owners. On a tenant in common's death it passes to the deceased's estate. The right of survivorship applies only to interests held in a joint tenancy, and property that does not pass by survivorship goes to the deceased's personal representative.

So the home is not always survivorship. Being married does not by itself make it so. Check the registered title to see which form of ownership was used.

What the Family Law Act adds

If a spouse dies owning the family residence as a joint tenant with a third party who is not their spouse, the joint tenancy is deemed severed immediately before death, according to the land registry bulletin on estate documents describing section 26(1) of the Family Law Act. That means the deceased's share would not simply pass to the other joint owner.

When the co-owner is your spouse, the Family Law Act also shows up in the paperwork. For a death on or after March 1, 1986, a survivorship application must include a Family Law Act statement. It says that the deceased and the surviving joint tenant were spouses, or that the deceased was not a spouse at death, or that the property was not a matrimonial home. A solicitor must sign these statements.

Separately, the land registry has a practice that no distribution of a deceased spouse's estate be made within 6 months of death without an executor's statement of no surviving spouse, a court order, or the surviving spouse's written consent. That bulletin notes that joint tenancies are dealt with in a different bulletin.

Joint home versus home held in one name

A will cannot by itself sever a joint tenancy. Survivorship takes precedence over a will. If the home was jointly held with your spouse, what the will says about the house generally does not change who takes it.

Land registration, probate and tax

In the Land Titles system, a survivorship application under section 123 of the Land Titles Act uses a statement that the applicant held the property as joint tenant with the deceased, that the applicant is entitled as surviving joint tenant, and the date of death. For converted land where no declaration of death was deposited, a survivorship application with appropriate proof of death is required, and the Family Law Act and any executions must also be considered. Forms have changed recently, so a lawyer should confirm the current requirements.

Estate Administration Tax excludes assets where there is joint ownership that automatically become assets of the other owners. Probate is not always required, though it is normally required if the deceased owned real property. Real property that does not pass by right of survivorship is a reason to apply.

For income tax, 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 passing to a surviving spouse or common-law partner resident in Canada may not result in a capital gain or loss, although the legal representative may elect out, property by property. A home can qualify as the deceased's principal residence only if, among other conditions, the deceased owned it alone or jointly with another person, and it must still be designated on Schedule 3 and Form T1255 even if the gain is fully exempt.

Unmarried partners and what to do next

A common-law spouse does not inherit under the Succession Law Reform Act on an intestacy. Family Law Act equalization and the election are for married spouses. If you were a common-law partner, joint ownership on title may matter even more, because it passes outside the will and intestacy rules.

• Get a current copy of the property's title and check whether it says joint tenants or tenants in common.
• Find the date of death and a certified proof of death.
• Note whether any mortgage, charge or other registration is on title.
• Check whether a will exists and who is named as estate trustee.
• Speak with a lawyer before registering anything, because a solicitor must sign the Family Law Act statements.
• Ask your accountant or lawyer about the final tax return and the principal residence designation.

Frequently asked questions