- A spouse with no interest in the matrimonial home who is living there at the other's death may stay rent free against the estate for sixty days.
- A surviving spouse must elect between taking under the will (or on intestacy) and equalization, and the election must be filed within six months of the death.
- Unmarried partners are treated differently under the Family Law Act, so the answer may depend on whether you were married.
After a spouse dies, one of the first worries is often simple: can I keep living here? The answer in Ontario depends on who owned the home, whether there is a will, and whether you were married.
This article walks through the main rules in plain language. Your own facts matter a lot, and deadlines can be short, so a lawyer can confirm how the rules apply to you.
What counts as 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. During the marriage, 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.
Staying in the short term
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 the home was owned jointly with your spouse, it generally passes to you by survivorship, and a survivorship application puts title in your name. One exception: 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.
If the home was in the deceased's name alone, the estate trustee deals with the title. The deceased's property, including the home, vests in the personal representative, who holds it as trustee.
Taking under the will or choosing equalization
If your spouse's net family property is greater than yours, you are 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 that equalization entitlement.
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.
The matrimonial home has special status in the calculation. It cannot be excluded as gifted or inherited property, and cannot be deducted as property owned on the date of marriage. On a death, the valuation date is the day before the death.
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 unless the applicant consents in writing or the court authorizes it. An equalization application on death cannot be brought after six months after the first spouse's death, among other limits.
When there is no will, or the marriage had ended
| Situation | What the rules say |
|---|---|
| No will, no children or other issue | A surviving spouse takes the whole estate, including the home |
| No will, with issue | The spouse takes a preferential share first: $350,000 for deaths on or after March 1, 2021, and $200,000 for earlier deaths |
| Separated at death, no will | Under this rule, a spouse who was separated has no intestacy entitlement. Separated means living apart because of marriage breakdown for three years, or under a separation agreement, court order or family arbitration award, and still living apart at death. Which version of the law applies can depend on the date of death, so it is worth confirming with a lawyer |
| Divorced, will names former spouse | Unless the will shows a contrary intention, the gift is revoked and the will is read as if the former spouse had died first |
No distribution may be made on an intestacy until one year after the death, subject to s. 53 of the Trustee Act.
Support claims and next steps
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. The Act's 'spouse' has the same meaning as in s. 29 of the Family Law Act, which covers some unmarried cohabitants.
A dependant's support application generally cannot be made more than six months after the grant of the certificate, but the court may allow a later application for any part of the estate still undistributed. Once served with notice of an application, the personal representative must not distribute until the court disposes of it, unless all persons entitled to apply consent or the court orders otherwise.
- Note the date of death and count six months for the election and any equalization application.
- Gather the deed, the will if any, and records of your assets and debts on marriage and at the date of death.
- Ask whether the home was owned jointly, alone, or with someone else.
- Do not sign an election or release until you understand what you give up.
- Speak with a lawyer early, before the deadlines pass.
Frequently asked questions
Can the estate make me leave right away?
If you have no interest in the matrimonial home but are living in it when your spouse dies, you may stay in possession against the estate, rent free, for sixty days after the death. If you own or co-own the home, different rules apply.
What happens if I miss the six-month election deadline?
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. That can limit your options, so seek advice early.
Does a common-law partner have the same rights?
Not for equalization and the matrimonial home. Unmarried cohabitants are covered only by the wider support definition in s. 29. A dependant's support claim may still be possible.
Can I get the right to stay in the home for life?
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. Whether that applies depends on your circumstances.
Sources
- Ontario Land Registration Bulletin 2000-6: Estate Documents — ontario.ca
- Family Law Act, R.S.O. 1990, c. F.3, s. 26(1) (e-Laws) — Ontario e-Laws
- Estates Administration Act, R.S.O. 1990, c. E.22, s. 2(1) (e-Laws) — Ontario e-Laws
- Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 17(2) (e-Laws) — Ontario e-Laws
- O. Reg. 54/95 (Preferential Share) under the Succession Law Reform Act (e-Laws) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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