Protection of spousal rights to the matrimonial home

BY: VALERIE DYE 

It is fairly well known that property owned by two persons as joint tenants (or jointly) attract the right of survivorship. This means that upon the death of one joint owner the other joint owner becomes entitled to the property. Ownership as joint tenants is convenient for married persons or for other persons who intend that property would pass automatically to the other joint owner outside of the estate of the deceased joint owner.

The right of survivorship is a general rule that applies to ownership of property. Nonetheless, when it comes to ownership of the matrimonial home there are certain exceptions.  Although most matrimonial homes are owned jointly by spouses, it is not uncommon for a matrimonial home to be owned jointly by one spouse and another third party.  If the right of survivorship is applied in such cases, it would mean that the property would pass to the surviving joint owner and not to the estate of the deceased which further means that the surviving spouse will have no rights to the property.

Thankfully, legislation in Ontario recognizes the special rights of spouses with regard to matrimonial homes and such rights extend to the situation where the matrimonial home is owned jointly by a deceased spouse and a third party.  Section 26 of the Family Law Act provides as follows: 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 shall be deemed to have been severed immediately before the time of death.

The effect of the severance of the joint tenancy is that the owners of the property now become tenants in common. This means that in relation to that property there is no longer the right of survivorship and the interest of the deceased spouse will now pass to his estate which will allow the surviving spouse to benefit.

The severing of the joint tenancy between the deceased spouse and a third party applies only to the matrimonial home and is intended to protect the surviving spouse.  If the deceased spouse owns other property jointly with a third party and such property is not considered a matrimonial home, then the right of survivorship will apply to that property.  As such the surviving joint owner will become the sole owner of the property.

Rights to possession

Generally, while parties remain married both of them are entitled to possession of the matrimonial even if the home is only legally owned by one spouse. Thus, even where the spouses separate they are both entitled to remain in the home until they are divorced. The right to possession extends to the surviving spouse in the event of the death of the owning spouse. By virtue of section 26 (2) of the Family Law Act a spouse who has no interest (or ownership) in a matrimonial home but is residing in that home at the time of death of the other spouse, is entitled to remain in that home rent-free for sixty days after the death of the spouse who owns the home.

Section 26 of the Family Law Act highlights the importance of the rights of a surviving spouse as it relates to the matrimonial home. This section defeats any intentions a spouse may have to disentitle his surviving spouse from rights to the matrimonial home by owning it jointly with a third party.