- Survivorship can pass a joint home or account to the surviving partner outside the will, but only if it was actually held that way.
- Unmarried partners cannot elect equalization of net family property.
- A surviving partner may still face a dependant support claim against joint assets, or a challenge about what the deceased intended.
If you live with a partner you never married, being on title together or sharing a bank account can feel like real protection. Sometimes it is, and sometimes it protects less than you think.
This article sets out what survivorship secures for an unmarried partner in Ontario, what it leaves open, and what to check now.
What survivorship secures
Property that passes by survivorship goes straight to the surviving owner and does not become part of the estate, with or without a will. A deceased joint tenant's interest goes to the surviving joint tenant, not to the will's beneficiaries.
For bank accounts, many joint accounts include a right of survivorship, and the surviving holder becomes the account owner. The gift of survivorship rights is treated as made during life, when the account is opened, and what is gifted is the survivor's interest in the balance at death.
Jointly owned property that passes automatically to the other owner is also left out of the estate's value for estate administration tax.
Being on title does not guarantee survivorship
For land, spouses and common-law partners hold as joint tenants only if the deed says so. Otherwise the law presumes tenants in common, and for this rule spouse includes two people in a conjugal relationship outside marriage. A tenant in common's share does not pass by survivorship.
If you and your partner died at the same time, or it is uncertain who survived, joint tenants and joint account holders are deemed to have held as tenants in common unless a contrary intention appears. Each share then passes through that person's own estate.
Check the parcel register rather than assuming. Land records are searched through OnLand, and ServiceOntario cannot search or explain them for you.
What survivorship leaves unprotected
| Situation | What the law says for unmarried partners |
|---|---|
| Equalization of net family property | Not available, because the Family Law Act definition of spouse for property division means people married to each other |
| Intestacy entitlements | The Succession Law Reform Act uses the same definition, except in Part V on support |
| Dependant support | Unmarried partners may qualify if they cohabited continuously for at least three years, or have a relationship of some permanence and are parents of a child |
| Challenge by heirs | Heirs may challenge a surviving joint account holder, who may need to show the deceased intended a gift |
For an adult survivor who put in no money, the starting presumption of the law can work against you. For a gratuitous transfer, the person receiving it bears the onus of showing a gift was intended, and an adult added to an account or asset without payment is presumed to hold it in trust for the transferor and, on death, the estate. Courts can look at the wording of bank documents, control and use of the funds, and tax treatment.
Support claims and joint assets
If a deceased did not make adequate provision for the proper support of a dependant, the Superior Court of Justice may order adequate provision out of the estate. For support purposes, spouse includes unmarried partners who meet the tests above, and former spouses whose marriage ended in divorce.
For a support claim, joint accounts and property held at death by the deceased and another as joint tenants can be deemed part of the net estate. For joint deposits, only the portion that belonged to the deceased immediately before the deposit is counted. The claimant must prove that, and a dependant who was the other party to the transaction must prove their own contribution.
A support application generally cannot be made more than six months after the certificate of appointment is granted, although the court may allow it at any time for any part of the estate still undistributed.
Banks and other holders may keep paying out unless a certified copy of a suspensory order has been personally served on them.
Tax and what to do next
A deceased person is considered to have sold their capital property just before death, even if it passes by survivorship. Property transferred to a surviving common-law partner who is resident in Canada can roll over without immediate gain, and some or all of the gain on a principal residence may be exempt. The automatic rollover on a gift during life also applies to a spouse or common-law partner.
- Get a parcel register copy and read whether title says joint tenants or tenants in common.
- Ask your bank what happens if one holder dies and whether the survivor can access the funds.
- Keep records of who paid for the home and who put money in the account.
- Remember that the bank sets its own documentation requirements.
- Talk to a lawyer if you are not married and one of you owns most of the assets.
- Ask an accountant about the final tax return.
Frequently asked questions
If my partner and I own a house together, do I automatically get it when they die?
Only if the two of you hold it as joint tenants. Spouses and common-law partners hold as joint tenants only if the deed says so. Check the parcel register.
Can I claim half of my partner's property as an unmarried partner?
Not through equalization of net family property, which is not available to unmarried partners. You may have other routes, such as a dependant support application or arguments about ownership, which a lawyer can assess.
Can the family challenge my partner's joint bank account?
Heirs may challenge the survivor, who may need to show the deceased intended the funds as a gift. Courts can consider the account documents, control of the funds and tax treatment.
Is there a deadline for a support claim?
Generally, no application may be made more than six months after the certificate of appointment is granted. The court may allow a late application for estate property not yet distributed.
Sources
- Estates Administration Act, R.S.O. 1990, c. E.22, s. 2(1) (e-Laws) — Ontario e-Laws
- Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, s. 13(2)-(3) (e-Laws) — Ontario e-Laws
- Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 1(1) (e-Laws) — Ontario e-Laws
- Land Titles Act, R.S.O. 1990, c. L.5, ss. 121-122 (e-Laws) — Ontario e-Laws
- Ontario.ca, Search land property records — ontario.ca
- Ontario.ca, Estate Administration Tax — ontario.ca
- Pecore v. Pecore, 2007 SCC 17 (CanLII) — canlii.org
- Canada.ca (ESDC), Powers of attorney and joint bank accounts — canada.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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