Tenancy in Common Issues: Inheritance

Ontario

Question:

I am very confused regarding tenancy in common. 

A and B bought property together as tenancy in common.  A is married and has children.  B is married and has children.  B died. 

My question.

1. All the property will go to A?

2. If A sells the property, will B’s wife get 50% share since it was bought when he was married? 

3. Is the property considered matrimonial home?

4. After B’s death, tenancy in common does not exist because it requires 2 or more persons. Is the property considered fee simple?

Answer:

Tenancy in common is the default position. There are two owners and no special relationship, no special deals etc. There is nothing at all with respect to inheritance.

  1. B’s property goes to B’s estate.
  2. The sale can only be made by the two owners, A and B’s estate. When B’s estate money comes in, it goes to whoever shares in B’s estate.
  3. It may or it may not be a matrimonial home. Assuming that B and his wife resided in the property and it was at the time of death their matrimonial home, then B’s wife would have the right to live there for 60 days following B’s death. That’s it. Nothing more under the Family Law Act.
  4. After B’s death, tenancy in common continues between A and B’s estate. Nothing otherwise changes. It might be fee simple, but that property ownership is irrelevant. It could also be a leasehold interest.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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