The Right to the Spousal Home in an Estate

By Vanessa DeDominicis

If a person passes away without a Will, there is no longer a life estate granted to the spouse they leave behind in the spousal home. Instead, the spouse will have the right to purchase the matrimonial home or elect that it be considered part of his or her share of the Estate. The spouse must elect this option within 180 days from the grant of letters of administration.

In this instance, the personal representative of the Estate must inform the spouse of their right to receive the spousal home in satisfaction of part or all of his or her share of the Estate. This notice requirement guarantees that the surviving spouse has had a fair chance to exercise their right to the spousal home. Requiring a spouse to decide whether they want the spousal home within 180 days of the personal representative receiving the grant, balances the interests of all parties – it ensures that a spouse has sufficient time for making up their mind about the home, and also ensures that the other beneficiaries (the deceased’s children from a previous marriage for example), have an end in sight as to when the Estate will be settled.

This 180 day waiting period (from the date the personal representative receives the estate grant) before selling or otherwise disposing of the spousal home, can create issues at the Land Titles Office, if the proper documentation is not filed with a transfer occurring prior to the expiration of the 180 day waiting period, even where there is a valid Will. For example, if the spouse consents (or the sale is necessary to pay debts), the spousal home may be sold before the 180 day period expires, BUT the Land Title’s Office will need to know why this is occurring.

Because a personal representative must not, without the written consent of the surviving spouse, dispose of the spousal home during the 180 days after the date on which the grant is issued, if a transfer IS occurring prior to that time frame, the Land Titles Office will require that the personal representative swear a Statutory Declaration that there is no spouse with an interest in the home. This Statutory Declaration must be filed with transfer, or it will be defected. Since the Land Title’s Registrar is unable to determine whether the land being conveyed constitutes a spousal home, consent from the spouse (or an explanation from the personal representative as to why the transfer is occurring) will be required.

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning/incapacity planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa practices in the area of Wills and Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.