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Separation and Divorce or Death of a Spouse: Property Division

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What happens to property if my spouse dies?

What happens to your spouse's property after they die depends on whether they had a valid will. A will is a written legal document that says who gets a person's property after that person dies.

To be valid, your spouse must have followed certain rules when making their will. For example, the rules say that they must usually sign the will before 2 witnesses.

If your spouse leaves a valid will, the instructions in their will says who gets their property when they die. But if they have a legal obligation to support a child, a former spouse, or other dependants, their will must leave enough to take care of them. If it does not, their dependents can go to court and ask for the will to be changed to give them support.

There are legal rules, called "intestacy" rules, that say who inherits if there is no will.

Inheritance: Married spouses

If you are legally married and your spouse dies leaving a valid will, you can choose whether to claim an equalization payment or receive what was left to you in the will. See section called Equalization for more information on how to calculate an equalization payment.

If your spouse dies without leaving a valid will, you can choose whether to claim an equalization payment or inherit your share according to the "intestacy" rules. These rules give married spouses and children the right to inherit property when there is no valid will.

In both these situations, you must take legal steps within 6 months of their death if you want to claim the equalization payment. Sometimes the court will allow more time.

Inheritance: Common-law spouses

Common-law spouses do not inherit any of their spouse's property unless it was left to them in a valid will. If your common-law spouse dies without leaving a valid will, the intestacy rules give their property to their children or other relatives, not to you. So if you are in a common-law relationship each of you must make a will if you want to choose what you want done with your property when you die.

Joint property

If your spouse dies, you usually become the sole owner of any money or property that you both owned jointly. This is true whether or not you were legally married.

For example, you usually have the right to all the money in any joint bank account and you become the sole owner of any real estate that the two of you held in "joint tenancy". This is not affected by a will or the intestacy rules.

In the same way, you would also inherit life insurance money and registered investments if you are listed as a "beneficiary" in the insurance policy or investment papers.

Benefits

There are some government benefits that you may be eligible for if your spouse dies.

CPP survivor's pension:

If your spouse made enough contributions, you may be entitled to a survivor's pension under the Canada Pension Plan (CPP). This is a monthly payment. You may qualify if, at the time of your spouse’s death:

  • you were legally married to them or you had been living with them for at least one year, and
  • you were at least 35 years old (you can be younger if you have a disability or have dependent children living with you).

There is no time limit to apply. CPP will give you benefits for the months dating back to your spouse's death, but they will not go back more than one year before the date you apply.

CPP funeral and death expenses:

If your spouse contributed to CPP, the plan also offers a one-time payment to help pay funeral and other costs related to your spouse's death. This is called a "death benefit". The payment goes to the person or people who pay those costs. This might be the person who administers the estate, the surviving spouse, or next of kin.

To apply, contact Service Canada at 1-800-277-9914 for an application package. You can also download the package from their website at www.canada.ca.

Compensation benefits:

Under Ontario law, you may also be entitled to other payments upon the death of your spouse, depending on the cause of death. If your spouse was killed on the job, you can apply for workers’ compensation benefits. If they died as a result of someone else's criminal act, you can apply for criminal injuries compensation. Each type of compensation has different rules about who can qualify.

To find out more about workers' compensation benefits, contact the Workplace Safety and Insurance Board (WSIB) at 1-800-387-0750 or 416-344-1000 in the Toronto area. Or you can visit their website at www.wsib.on.ca.

To find out more about criminal injuries compensation, contact the Criminal Injuries Compensation Board (CICB) at 1-800-372-7463 or 416-326-2900 in the Toronto area. Or you can visit their website at www.sjto.gov.on.ca/cicb.

For more information and help, contact your community legal clinic. To find the community legal clinic nearest you, call Legal Aid Ontario toll-free at 1-800-668-8258 or 416-979-1446 in the Toronto area. Or you can visit their website at www.legalaid.on.ca.