When a Spouse Dies: What Rights Does an Untitled Spouse Have in the Matrimonial Home?

Many people assume that if a home is owned by one spouse alone, that spouse is free to leave it to whomever they choose in their will. While that may seem logical, the law in Ontario is more complicated. Even where only one spouse is on title to a home, the other spouse may still have important rights relating to that property, particularly if it qualifies as the matrimonial home.

A recent Ontario court decision, Zhang et al. v. Zhang 2026 ONSC 1353, provides a helpful reminder of how these rights can affect estate administration and family disputes after a spouse passes away. The case illustrates that title ownership alone does not necessarily determine who has the right to remain in a home following a death.

In Zhang, the deceased owned a property in Ontario solely in her name. Shortly before her death, she executed a will leaving her entire estate, including the home, to her two children. After she passed away, the children, acting as estate trustees, sought to sell the property in accordance with the will.

However, the deceased’s husband, to whom the deceased was estranged, continued to live in the home and refused to move out. Although he was not on title, he argued that the property was the family’s matrimonial home and that he had a right to continue living there. The children applied to the court for several orders, including permission to issue a writ of possession to remove their father from the property and a claim for occupation rent for the period he remained in the home.

The court ultimately dismissed the application. Importantly, the court held that the estate trustees had not first obtained a determination regarding possession of the property and therefore could not obtain a writ of possession. In reaching that conclusion, the court emphasized that the rights of a surviving spouse in a matrimonial home can arise under family law legislation, even where the property is owned by the deceased spouse and left to other beneficiaries.

Under Ontario’s Family Law Act, both spouses generally have an equal right to possession of the matrimonial home during the marriage, regardless of whose name is on title. A matrimonial home is broadly defined as any property that the spouses ordinarily occupied as their family residence. Because these possession rights arise from the marital relationship rather than ownership, a spouse who is not on title may still have a legal right to occupy the home.

These principles can continue to have consequences even after one spouse dies. When a spouse passes away, the estate trustee effectively steps into the legal position of the deceased. However, the surviving spouse’s rights relating to the matrimonial home do not necessarily disappear immediately. As the court noted in Zhang, disputes about who has the right to possess the matrimonial home often need to be resolved under the Family Law Act before an estate trustee can take steps to remove the surviving spouse or sell the property.

The legislation also provides a specific protection for surviving spouses. Section 26(2) of the Family Law Act allows a spouse who is occupying the matrimonial home at the time of the other spouse’s death to remain there rent-free for sixty days following the death. This provision is often misunderstood. Some assume that once the sixty days have passed, the surviving spouse must vacate the home. The court in Zhang clarified that this is not necessarily the case. Rather, the sixty-day provision guarantees that the surviving spouse may remain in the property without paying rent during that period. After the sixty days have expired, the spouse may still continue living in the home, but issues such as possession rights and occupation rent may need to be determined by the court.

Occupation rent can arise where one person has exclusive use of a property while another person also has a legal right to possess it. In those circumstances, the court may order the person occupying the property to compensate the other party for the loss of use. However, as the court noted in Zhang, claims for occupation rent generally cannot be resolved until the court first determines the parties’ rights regarding ownership and possession of the property.

The decision highlights an important reality in estate administration: even if a will clearly leaves a home to children or other beneficiaries, a surviving spouse who has been living in that home may still have significant rights. These rights can delay the sale or transfer of the property and may require court involvement to resolve.

For individuals planning their estates, this case is also a reminder that estate planning and family law considerations are often closely connected. Decisions about property ownership, matrimonial homes, and spousal rights can have major implications for how an estate is ultimately administered. In some cases, careful planning during life can help reduce the likelihood of disputes after death.

For that reason, it can be helpful to involve both estate planning and family law professionals when developing a comprehensive plan. Issues relating to matrimonial homes, spousal rights, and property ownership frequently intersect with wills and estate administration. A coordinated approach can help ensure that these matters are considered together rather than in isolation.

At Pavey Law LLP, our lawyers work across multiple practice areas, including estates, estate litigation, and family law. As a full-service firm, we are well positioned to assist clients with both the estate planning process and the family law considerations that may affect their assets and property rights. This integrated approach can help clients develop practical and effective strategies that minimize uncertainty and reduce the risk of disputes.

If you have questions about estate planning, matrimonial homes, or the rights of spouses following a death, obtaining legal advice early can make a significant difference. Our team would be happy to discuss your circumstances and help you develop a plan that protects your interests and provides clarity for your family.

To learn more about how we can assist you, contact the estates and family law teams at Pavey Law LLP today.