Estates & Wills & Trusts

Rights to the matrimonial home upon death of a spouse

By Kirsten McMahon, AdvocateDaily.com Managing Editor

It’s important to understand who will have rights to the matrimonial home following the death of a spouse when drafting your will, says Toronto wills and estates lawyer Lisa Laredo.

Section 18 (1) of the Family Law Act (FLA) defines the matrimonial home as, “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”

However, there are exemptions and caveats to be aware of, says Laredo, principal of Laredo Law.

“Only married spouses may have a matrimonial home — the right does not extend to common-law couples,” Laredo tells AdvocateDaily.com.

She says a matrimonial home isn’t limited to one property, but both spouses have to designate the family homes under the FLA.

“Any other properties that fall within the definition of a matrimonial home, but aren’t designated by both spouses as such, are then deemed not to be matrimonial homes,” Laredo explains. “But, if only one spouse designates the matrimonial home, all properties that fall within the definition will continue to be considered the matrimonial home.”

When one spouse dies, Laredo says the surviving spouse — if a non-owner — is entitled to possession of the home for 60 days under the FLA.

She says there are other factors that may impact the rights of the surviving spouse to the matrimonial home. In particular, joint tenancy, title as tenants in common, rights under a separation or marriage contract, and those under a will.

“If a married couple held title as joint tenants, then there is an automatic right of survivorship, and the house will pass to the surviving tenant,” Laredo says. “If there is a marriage contract, it may provide for a life estate in which the surviving spouse can reside in the house for as long as he or she may live or until they decide to move.”

The will of the deceased spouse can also set out the terms of the surviving spouse’s residency or ownership in the matrimonial home, she says.

Laredo notes that the rights flowing from the designation of a matrimonial home — whether specific or arising from the facts — are possessory and do not create an interest in the land.

“Therefore, a non-titled spouse’s right to remain in the matrimonial home will cease when the spousal relationship ends on death, subject to the statutory right to remain in possession for 60 days,” she says.

However, Laredo says a non-titled spouse or common-law partner may have rights in the house arising from contributions made to the upkeep and maintenance of the property. In addition, there could be equity under a claim for unjust enrichment.

“These rights have nothing to do with the FLA but rather may become claims against the estate,” she says.

This is the final instalment of Laredo’s three-part series on family law issues in the context of estate administration.

To read part one, where Laredo discusses estate administration and blended families, click here.

To read part two, where Laredo explores equalization of net family property after a spouse dies, click here.

To Read More Lisa Laredo Posts Click Here