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Sunday, May 17, 2020

On the death of the title-holding spouse, the matrimonial home may not go to the surviving spouse

Recently I seem to be receiving a lot of questions about matrimonial homes and what happens to them after one spouse passes away. This issue is particularly important when only one half of the married (or common law) couple's name is on the property.

There are lots of reasons why only one name might be on the property. It could be because one half of the couple owned the property before the marriage and it was just never changed. It could be because one half of the couple needed creditor protection or couldn't qualify for a mortgage. In any event, there are plenty of couples in this situation. What if the one who owns the title is the one who passes away first? What happens to the title then? Of course couples want to plan ahead so that the home is retained by the surviving spouse if the home-owner passes away.

When the property is not held in joint names and the intention is for the surviving spouse to own it, I strongly recommend preparing a will that leaves the property to him or her. If the plan is different, say, to leave the home to the children of the home-owner's first marriage, then the will should state that intention. However, even with a will in place, the home might be subject to matrimonial rights that cannot be extinguished by a will. Whether that is the case will depend largely on where you live, as all provinces have different laws.

In the province where I practice (NL), a surviving spouse would automatically be entitled to own the matrimonial home upon the death of his/her spouse, but that right can be waived in writing. In ON, there is no such corresponding right, and the property is treated no differently from other assets in the estate. In MB, the spouse can live in the home for the rest of his/her life but never owns the title. In some provinces (BC, AB) the spouse can stay for a matter of months.

This is something you should discuss with a lawyer local to you. Find out what the law says in your province and find out what would work for you.

I also suggest that you pick up a copy of my book called The No-Nonsense, Real Life Guide to Estate Planning in Canada. It covers matrimonial property in some detail, including a detailed chart that describes the right of the surviving spouse in every province and territory. It covers a lot of other good stuff too, such as beneficiary designations, issues arising with particular situations such as blended families, disabled children, and estranged children, and lots of information about probate. You can find it on my website, on lulu or on Amazon.

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