Spouse's Right to the Matrimonial Home Under an Ontario Estate

If your spouse has died and the will leaves you little, or leaves the family home to someone else, the next few months matter. Ontario law gives a surviving spouse a choice, and that choice comes with a short deadline.

This article explains the election, how the matrimonial home is treated, and what protections exist while the estate is being settled. It is general information, and your own facts can change the result.

The choice a surviving spouse must make

A surviving spouse must elect either to take what the will gives them (or what the law gives on an intestacy) or to receive the equalization entitlement.

Equalization works like this: if the deceased's net family property is greater than yours, you are entitled to one-half the difference. If you elect equalization, the gifts to you in the will are revoked unless the will expressly provides otherwise.

Why the matrimonial home is treated specially

A matrimonial home is every property in which a person has an interest and that is ordinarily occupied by the person and their spouse as their family residence (or was, at separation, if they separated). Both spouses have an equal right to possession of it.

In calculating net family property, a matrimonial home cannot be excluded as gifted or inherited property, and it cannot be deducted as property owned on the date of marriage. On a death, the valuation date is the day before the death.

How the home is owned also matters. When a home is held in joint tenancy, a survivorship application puts title in the surviving joint tenant's name. The matrimonial home has a special rule here: if a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy is deemed severed immediately before death, and that share goes to the estate instead of passing by survivorship.

Deadlines you cannot miss

• The election must be filed in the office of the Estate Registrar for Ontario within six months after the death.
• A spouse who does not file in time is deemed to have elected to take under the will or intestacy, unless the court orders otherwise.
• An equalization application on death cannot be brought after six months after the first spouse's death, among other limits.
• No distribution may be made from the deceased spouse's estate within six months of the death, and after notice of an equalization application, none may be made without the applicant's written consent or court authorization.

How the election affects you depends on your situation, so it is worth getting the numbers worked out and confirming with a lawyer before you file.

Staying in the home and other protections

A spouse who has no interest in the matrimonial home but is living in it when the other spouse dies may stay in possession against the estate, rent free, for sixty days after the death.

If there is no will, a surviving spouse with no issue takes the whole estate, including the home. Where there are issue, the spouse takes a preferential share first, which is $350,000 for deaths on or after March 1, 2021.

Separation and divorce change things. A gift to a former spouse in a will is generally revoked when the marriage ends by divorce or nullity, unless the will shows a contrary intention. A spouse who was separated from the deceased at death has no intestacy entitlement, and separated has a specific meaning.

Support claims and unmarried partners

If the deceased did not make adequate provision for a dependant, the court may order support, including possession or use of specified property such as the home for life or for a period the court considers appropriate. For these claims, spouse has the same meaning as in s. 29 of the Family Law Act, which covers some unmarried cohabitants.

That is different from equalization. For the equalization and matrimonial home parts of the Family Law Act, spouse means people who are married to each other, or who entered a void or voidable marriage in good faith, so unmarried cohabitants are not covered there.

A dependant's support application generally cannot be made more than six months after the grant of the certificate, though the court may allow a later application for any part of the estate still undistributed. Once the personal representative is served with notice of an application, they must not distribute until the court disposes of it, unless everyone entitled to apply consents or the court orders otherwise.

What to do next

• Note the date of death and count six months forward right away.
• Get a copy of the will and ask the estate trustee for a list of assets and debts.
• Gather records of what you and your spouse owned on the date of marriage and the day before death.
• Find out where you stand on staying in the home, including the sixty-day rent-free right that applies to a spouse with no interest in it.
• Speak with a lawyer before filing the election, because the choice affects what you receive.

Frequently asked questions