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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 their will in front of 2 witnesses.

If your spouse has a legal responsibility to support a child, a former spouse, or other dependants, they must leave enough to take care of them in their will. If they do not, their dependents can go to court and ask for the will to be changed to give them support. This is called making a dependant's support claim.

There are legal rules, called "intestacy" rules, that say who gets your spouse's property if they do not have a valid will. The rules are different for married and common-law couples.

Inheritance: Married spouses

If you are married and your spouse dies leaving a valid will, you can choose to get either an equalization payment or what was left to you in their will. See section about Equalization for more information on how to calculate an equalization payment.

If your spouse dies without leaving a valid will, you can choose to get an equalization payment or 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 situations, you must usually take legal steps within 6 months of your spouse's death if you want to claim the equalization payment.

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 each other to inherit 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 for both married and common-law couples.

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 those assets list you as a "beneficiary".

Other benefits

There are some government benefits that you may be able to get if your spouse dies.

CPP survivor's pension

If your spouse made enough contributions, you may be able to get 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, but 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 you, another relative, or the person who handles the estate.

To apply, contact Service Canada at 1-800-277-9914. You can also apply online at www.canada.ca.

Compensation benefits

Under Ontario law, you may be able to get other payments that depend on the cause of your spouse's death. If your spouse was killed while working, you can apply for workers' compensation benefits. If they died as a result of someone else's criminal act, you may be able to 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.