Non-Titled Spouse and Rights Concerning Deceased’s Estate

Question:

The wife survives but she is not on title. This is a second marriage, so the Will includes the husband’s children of his first marriage. Can she stay in the house?

Answer:

My understanding is that because this is a matrimonial home, there are provisions under the Family Law Act that would apply in terms of the non-titled spouse, such as possession and the spousal interests in the assets of the deceased. There is also a time limit for this to be settled, but unsure of that time frame in these circumstances since no dates were mentioned.

In this case, due to the fact that it is a matrimonial home, the surviving spouse is able to continue to occupy the property for 60 days after the date of death.

There may indeed be an interest in the assets. That arises not only under the Family Law Act (equalization payment) but also the common law based upon:

1) contributing financially to the purchase, and/or

2) a beneficial trust being imposed by the Court to reflect non-financial contribution by reason of a joint venture or partnership arrangement.

If the spouse is not satisfied with the assets to be conveyed under the Will of the deceased, they have 6 months to decline such entitlement and receive the equalization payment that they would have received during the lifetime of the deceased had they obtained a divorce on the date of death.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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