Spouse's Right to Stay in the Matrimonial Home After Death: Ontario

If your spouse has died and the will leaves the home to someone else, you may be worried about how long you can stay. Ontario's Family Law Act gives surviving spouses some protection, but the rights are limited in time and some deadlines are short.

This article walks through those rights in plain terms. Your situation may turn on how the home was owned and what the will says, so a lawyer can confirm how these rules apply to you.

Who counts as a spouse, and what is a matrimonial home

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

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. Unmarried cohabitants are covered only by the wider support definition in s. 29. If you are a common-law partner, the matrimonial home rules in this article may not apply to you, though you may still have other options.

The right to stay for sixty days

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. This is a short-term protection, not a right to live there long term.

If you co-owned the home with your spouse as joint tenants, ownership generally passes to you by survivorship, and a survivorship application puts title in your name. The exception is where 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 then deemed severed immediately before death, and that share goes to the estate.

Beyond sixty days: choosing between the will and equalization

When a spouse dies and the deceased's net family property is greater than the survivor's, the surviving spouse is entitled to one-half the difference. A surviving spouse must elect either to take under the will, or under Part II of the Succession Law Reform Act on intestacy, or to receive the equalization entitlement.

The matrimonial home has a special status in this calculation. It 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.

• 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.
• If you elect equalization, the gifts to you in the will are revoked unless the will expressly provides 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 a deceased spouse's estate within six months of the death. After notice of an equalization application, no distribution may be made unless the applicant consents in writing or the court authorizes it.

Other situations that change the picture

• 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, and $200,000 for earlier deaths.
• Separated at death: whether a separated spouse has an intestacy entitlement depends on when the death occurred and on the facts of the separation, so it is worth confirming with a lawyer.
• Divorced: unless the will shows a contrary intention, a gift to a former spouse is revoked when the marriage ends by divorce or nullity, and the will is read as if the former spouse had died first.
• Support claim: if the deceased did not make adequate provision for a dependant, the court may order support, including possession or use of the home for life or for a period the court considers appropriate. 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.

What to do next

• Write down the date of death and count forward to the dates for the stay and the election.
• Find out how the home was owned, and whether anyone besides your spouse held an interest.
• Ask the estate trustee for a copy of the will and details of the estate's assets and debts.
• Get advice on whether to take under the will or elect equalization before you file anything.
• Do not assume the sixty-day right to stay carries on past that period, because the court can order possession or use of the home for a dependant in some cases.
• Speak with a lawyer soon, because several deadlines are short.

Frequently asked questions