
This topic can be very painful and emotional. Most of us aren’t prepared for losing a spouse, so it’s not without challenges. Outside of the grieving process, legal and financial matters need to be dealt with.
You need to understand how the laws in the province of Ontario handle this situation, whether you’re the surviving spouse or helping a loved one navigate such a difficult time.
As a Senior Real Estate Specialist (SRES), I have extensive experience guiding older adults and their adult children through this complex issue.
What Happens to the Home After a Spouse Dies?
The first item to confirm is whether your spouse has a will. A will is a legal document outlining the deceased’s wishes for their assets, including their house. If there is a will, the executor (responsible for managing the estate) will distribute the property according to the instructions.
If your spouse leaves the house to you, you’ll likely inherit the property without complication. If your spouse leaves the house to someone else, then the executor of the will is responsible for distributing the property as per the instructions in the will. This is something you will want to seek professional legal advice for.
Several factors will determine who gets the house, including how home ownership is registered on the title of the property. Here are some common scenarios:
What is Joint Tenancy?
Joint Tenancy with the right of survivorship is a common type of homeownership for married couples. In this scenario, the surviving spouse automatically inherits the house, and no probate is needed.
I recently listed and sold a condo in the Beach neighbourhood in Toronto. Sadly, following the acceptance of an offer, the husband passed away. They were in the middle of transitioning to their new condo, and since the apartment was owned as joint tenants, the right of survivorship permitted the real estate lawyer to remove the spouse who passed away from the title.
We provided the lawyer with a copy of the death certificate, and there was an administrative fee of approximately $300. This straightforward process was nice for the surviving spouse as they didn’t need further stress.
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What is Tenants in Common?
Some of my clients prefer tenants in common. This type of ownership is common in people living as common-law partners or in second marriages and possibly having children from previous marriages.
I have an example to share with past clients. They were a retired couple and decided to cohabitate, but their interest in homeownership wasn’t equal.
The other concern, not knowing who would pass away first, meant someone could potentially be left without a place to live. For this reason, they each adjusted their wills to allow their partner to remain in the home following one of them passing. Each of them had adult children from previous relationships. Since each of their children was set to receive an inheritance when they passed, they structured their will to allow the surviving spouse to remain in the house until they passed away or could no longer live in the home.
At that point, the house could be sold, and the proceeds be distributed to their beneficiaries. This is a very complex situation and should always be done with advice from a legal professional and an estate planner.
Want to know more about tenants in common living as a senior? Click here to read my blog on the topic!
What if Only One Spouse Bought or Owned the Home?
Another common scenario is Sole Ownership. If the deceased spouse was the home’s sole owner, then the outcome for the surviving spouse depends on what the will says. If no will exists, the house will be distributed based on Ontario intestacy laws. This could involve children, stepchildren, or other family members. This scenario can create a big mess and leave your spouse in a stressful situation. For this reason, having a will is crucial if you own real estate.
I recently worked on a listing in Scarborough with an executor where she and her brother sold her father’s home. Their father was widowed as their mother passed away many years ago. Their father had a common law partner who moved into his house because they wanted to live together.
Part of the discussion between them, their father, and his common-law partner before she moved in was what would happen to her if she sold her house and moved in with him, but he passed away before her. Her concern was legitimate because, at the time, she owned her house mortgage-free.
If she sold her house and years later he passed away first, she likely wouldn’t be able to purchase another home as she was in her seventies at the time and would be priced out of the market. As the sole owner of his house, he changed his will to permit his common-law spouse to live in the house even if he passed away before her.
Essentially, the estate would become the landlord, so the estate was responsible for paying property taxes and home insurance and any significant repairs and maintenance the home required. She was responsible for regular upkeep and paying for the utilities.
It turned out that her father, the sole owner of the house, passed away first, so communicating the plan was a brilliant idea, and everyone was on the same page. The executor knew her father’s wishes and stuck to the plan. His common-law spouse remained in the house for a few years before she passed away. What could have been an ugly and stressful situation was avoided because everyone communicated their concerns in advance, and the plan was put in writing with professional legal advice.
Looking for more advice about property inheritance, estate sales, and similar circumstances? Explore these related blogs next.
- Is There an Inheritance Tax in Canada?
- Should I Give My House to My Kids or Sell It?
- When Do You Need A Power Of Attorney (POA) In Real Estate?
What Happens in the Case of Separation?
If you and your spouse are separated, as of January 1, 2025, the Succession Law Reform Act (SLRA) will have full effect. If a person dies without a will, it doesn’t mean the surviving spouse is automatically entitled to the deceased’s home. If you are separated, it’s a reminder to update your will. To get further information for this scenario, you should seek legal advice to learn about your rights under Ontario family and estate laws.
If you are the surviving spouse, you will need to know if the property has a mortgage. If there is a mortgage, you must continue making mortgage payments. In Ontario, the mortgage doesn’t automatically disappear. Depending on the financial circumstances, you should contact the lender to find out your options for refinancing, assuming the mortgage, or if selling the property is the best option.
What Should You Do if Your Spouse Passes Away?
- Find the title and estate documents. Determine the type of homeownership and confirm if there’s a will.
- Confirm whether there’s a mortgage or not. If a mortgage exists, continue to make payments.
- Contact a realtor. Understanding the current market value will help you with decision-making.
- Contact a real estate lawyer. They will advise on legal obligations and options in the province of Ontario.
- Talk to family. Open communication will facilitate a smoother transition and ensure everyone is on the same page.
- Preparing and planning can ease the pressure and stress on loved ones. If you and your spouse own a home, you should consider
- Review the ownership type and consider adjusting if necessary.
- Creating or updating your will.
- Discuss finances and determine how the mortgage, if you have one, and other home maintenance expenses will be paid.
Work With a Senior Real Estate Specialist
When planning for your next chapter, consult with a realtor who specializes in working with older adults. As a Senior Real Estate Specialist (SRES), I have extensive experience and the skills required to guide you through your unique needs as you age.
As a Senior Real Estate Specialist I am here to support you in any way you need. Reach out to 647.283.2127 or email stuart@stuartnodell.com to start a conversation.

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