Does the Surviving Spouse Keep the Matrimonial Home Without a Will?

You have lost your spouse, there was no will, and you want to know whether you can stay in the family home. The answer depends on how the home was owned, what else is in the estate, and whether there are children.

This article walks through the general rules: joint ownership, the preferential share, the choice you may have to make, and the deadlines. A lawyer can confirm how they apply to your family.

First question: how was the home owned?

Property a person owns at death, other than property passing by right of survivorship, vests in the personal representative, who holds it in trust for those entitled. Jointly owned property that passes by survivorship therefore falls outside the estate.

If you and your spouse owned the home as joint tenants, it generally passes to you directly, and the intestacy rules do not decide who gets it. If your spouse owned it alone, or as a tenant in common, the deceased's share is part of the estate and the intestacy rules matter. Check the title documents to see how the home is registered.

If your spouse held the home as a joint tenant with a third person rather than with you, the joint tenancy is deemed severed just before death. A spouse who occupied the home at the death may remain rent-free for 60 days after the death.

How the intestacy rules divide the estate

If the deceased left a spouse but no children or other issue, the spouse takes the whole intestate estate. If there is a spouse and issue, the result depends on the net value of the estate, which is calculated after charges on the property, debts, funeral expenses and administration expenses.

If the net value is no more than the preferential share, the spouse takes all of it. If it is greater, the spouse takes the preferential share first. The preferential share is $350,000 for persons who die on or after March 1, 2021, and was $200,000 for earlier deaths.

On what remains above the preferential share, a spouse with one child takes one-half, and a spouse with more than one child takes one-third, with the rest going to the issue. If a child died first leaving issue alive at the death, the spouse's fraction is worked out as if that child were living.

Whether the home can be transferred to you, or has to be sold to fund shares for others, depends on its value, what else the estate holds, and what the beneficiaries agree to. That is worth working out with a lawyer.

The choice between intestacy and equalization

If your spouse left no will, you must choose between the intestacy entitlement under Part II of the Succession Law Reform Act and the equalization entitlement under the Family Law Act, which is one-half the difference where the deceased's net family property exceeds yours. Choosing equalization means you are deemed to have disclaimed the intestacy entitlement.

The election must be filed with the Estate Registrar, in the prescribed form, within six months after your spouse's death. If no election is filed in time, you are deemed to have chosen the intestacy entitlement unless a court orders otherwise. An equalization application made more than six months after the death is also barred, subject to the court extending time.

Which choice is better depends on the numbers: the value of each spouse's property, the number of children, and how the home was held. An accountant or lawyer can help compare them before the deadline.

Separation, common-law partners and support

• Spouses who were legally separated at death lose their intestacy entitlements. Spouses are separated if they lived apart because of marriage breakdown for three years immediately before death, or had a valid separation agreement, a court order on the settlement of affairs, or a family arbitration award and were living separate and apart at death.
• The separation rule applies only to separations on or after the commencement of the relevant Accelerating Access to Justice Act, 2021 provision, so the timing matters.
• Unmarried common-law partners are not included as spouses for equalization or intestacy purposes.
• A common-law partner can still qualify as a dependant for a court-ordered support claim from the estate.

A dependant can ask a court for support if the deceased did not make adequate provision for their proper support, whether or not there was a will. Such an application generally cannot be made more than six months after the grant of probate or administration, although a court may allow a late application for any portion of the estate still undistributed.

What to do next

• Get a copy of the title to the home and see whether it names both of you as joint owners.
• Note the date of death and mark the six-month election deadline on your calendar.
• List all assets and debts so the net value of the estate can be estimated.
• Do not move out, sign over title or sign any election before you understand the options.
• Talk to a lawyer about whether to elect equalization or take under the intestacy rules, and who should apply to be administrator.

Frequently asked questions