Joint Tenancy vs Tenancy in Common — Which Should Spouses Use in Canada?

A second-marriage couple in Mississauga bought their matrimonial home in 2018 as joint tenants. He had two adult children from his first marriage. She had one. He died unexpectedly in 2024. The home, by operation of survivorship, passed entirely to his second wife. His children, expecting to inherit half the home's value as part of their father's estate, received nothing from it — the joint tenancy had taken it out of the estate entirely. His will, which had directed an equal share of his property to all three children, was effectively neutralised on this asset because survivorship is determined by title, not by the will.

This is the cleanest demonstration of why the joint tenancy versus tenancy in common question matters more than the will itself. The form of ownership decides the path the property takes. The will controls only what remains in the estate after survivorship has done its work. For many Canadian couples — and particularly for second marriages — the right answer is not the default.

This guide walks the two forms of ownership, the consequences for spouses, and the situations where the default is wrong. For broader context, see our pillar on estate planning in Canada.

The two forms of co-ownership #

Canadian common-law provinces recognise two principal forms of co-ownership of real property: joint tenancy and tenancy in common.

Joint tenancy with right of survivorship. Two or more owners are deemed to own the entire property simultaneously, not divided shares. On the death of one joint tenant, the property is treated as having always belonged to the survivors. Title is updated to reflect the survivor's sole ownership, and the deceased's interest does not pass through their estate.

Tenancy in common. Each owner holds a defined fractional interest — half each, three-quarters and one-quarter, or any agreed split. On the death of a tenant in common, their fractional share passes through their estate, governed by their will (or by the intestacy rules if there is no will).

The provincial Land Titles statutes — Land Titles Act in Ontario, Land Title Act in BC, equivalents in each province — set out the registration mechanics.^[1][2] By default in most provinces, a transfer to two or more buyers creates tenancy in common unless the deed specifically says "joint tenants" or includes survivorship language. Spouses often hold the matrimonial home as joint tenants, but that reflects how the deed is registered, not an automatic presumption — and Ontario’s Family Law Act (s. 26) actually severs a joint tenancy held with a third party on death and gives a surviving spouse a 60-day right to occupy.

The probate, survivorship, and estate implications #

The two forms produce materially different outcomes on death.

Under joint tenancy, the property passes by operation of law to the surviving joint tenant. Three consequences follow:

The property is not part of the deceased's estate. It does not flow through the will. It is not subject to probate fee at the first death. Wills variation claims under WESA section 60 in BC, or dependent-relief claims in other provinces, generally cannot reach the property because it is no longer the deceased's property as of the moment of death.

The surviving joint tenant takes full title automatically. No probate certificate is needed for the surviving spouse to deal with the property. The land titles office updates title on production of a death certificate.

The federal spousal rollover under section 70(6) applies in respect of the property, deferring capital gains to the surviving spouse's eventual death or disposition.^[3]

Under tenancy in common, the deceased's fractional share passes through their estate. Three consequences follow:

The property is part of the estate for the deceased's fractional share. The deceased's will governs disposition. Probate fees may apply on the deceased's share. Wills variation or dependent-relief claims can potentially reach the share.

The surviving co-owner does not automatically inherit the deceased's share. Title transfer requires probate (or letters of administration if there is no will) and a conveyance by the executor.

The federal spousal rollover still applies if the will directs the share to the surviving spouse. The rollover is not unique to joint tenancy; it applies to any transfer of capital property from a deceased spouse to a surviving spouse, including by way of bequest under a will.

When joint tenancy is the right answer #

For most first-marriage Canadian couples with shared children, joint tenancy is the practical default. The reasoning is straightforward.

Administrative simplicity. The survivor takes sole title immediately. No probate, no executor administration, no transfer paperwork on the matrimonial home at a moment of grief.

Probate-fee deferral. The first death does not trigger probate on the home. In provinces with material probate fees (BC, NS, ON), this is a meaningful saving — for an Ontario home valued at $900,000, the saved probate fee at the first death is approximately $12,750 (1.5% on the value above the first $50,000).

Common intent. Most first-marriage couples want the survivor to have full control of the home. Joint tenancy delivers this without any will-drafting required.

Family-law alignment. The matrimonial home is generally treated as jointly owned for family-property purposes under provincial family law, regardless of title. Joint tenancy aligns the legal title with the underlying property-rights reality.

When tenancy in common is the right answer #

Several situations favour tenancy in common over joint tenancy.

Second marriages with separate children. The most common and most important scenario. Each spouse owns half the home as tenant in common. Each spouse's will directs their half to their own children, with appropriate life-estate or right-of-residence provisions allowing the surviving spouse to continue living in the home until their own death. The surviving spouse is housed; the deceased's children eventually inherit the deceased's half. Joint tenancy in this situation produces the disinheritance outcome described in the opening example.

Unequal financial contributions. Common-law couples or first-marriage couples where one spouse contributed a substantially larger down payment may want title to reflect those contributions. Tenancy in common allows a 60/40 or 70/30 split that survives the marriage and protects the larger contributor's interest.

Buy-out planning. Where one spouse may want to be bought out by the other (in cases of differing retirement plans, or as part of a planned separation), tenancy in common with documented fractional shares makes the buy-out arithmetic straightforward.

Estate freezes or holding-company structures. Sophisticated estate plans sometimes hold property in tenancy in common with a holding company to enable specific tax outcomes. These are specialist structures with their own analysis.

Wills variation protection (BC). In BC, where wills variation claims under WESA section 60 are common, a spouse who wants the property to pass through their estate (rather than by survivorship) may prefer tenancy in common combined with a will that explicitly addresses the variation risk.

The Pecore problem if children are added #

When the discussion expands beyond two spouses to include adult children added to title, the analysis changes materially. The Supreme Court of Canada's Pecore v. Pecore (2007) decision created a rebuttable presumption that an adult child holding joint title with a parent holds the parent's share in resulting trust for the parent's estate.^[5]

For Canadian parents tempted to add adult children to title to "avoid probate" on the home, this means the planned outcome — child becomes sole owner by survivorship — may not occur. Absent clear documentation of the parent's intent to make a beneficial gift of the survivorship right, the courts will treat the child's joint title as a bare-trust arrangement, with the property still forming part of the parent's estate. The probate has not been avoided; only the title has been mislaid.

The takeaway is that joint tenancy between spouses is generally non-controversial — Pecore is about joint title between parents and adult children, not between spouses — but adding adult children to title is a different question, with its own legal-presumption framework, and should not be done casually.

How to change the form of ownership #

Spouses can sever a joint tenancy and convert it into a tenancy in common during life. The mechanism is generally a registered transfer or declaration severing the joint tenancy, executed by either spouse alone or by both.

Severance is often done in two scenarios. The first is anticipating separation or divorce — separating spouses commonly convert from joint tenancy to tenancy in common to ensure each can direct their own half by will. The second is mid-life estate replanning — couples who married young as first-marriage joint tenants may decide, decades later, that each wants to leave their half to specific children, in which case severance into tenancy in common opens that option.

The mechanics vary by province but generally do not require court approval. A single owner can typically sever a joint tenancy unilaterally by transferring their interest to themselves as tenant in common, although some provinces require notice to the other joint tenant. Legal advice during severance is worthwhile because severance has family-law consequences that can affect a separation or divorce settlement.

The interaction with the will #

The cardinal rule is that survivorship trumps the will. A property held in joint tenancy passes to the survivor regardless of what the will says. A will purporting to leave "all my property to my children" cannot reach a jointly held home — the home is not the deceased's property as of the moment of death. The will operates on what is in the estate; survivorship determines what is in the estate.

This has surprising consequences for many Canadian estates. A will drafted with apparent equal treatment of all children can produce dramatically unequal outcomes if the home (the largest asset) was held in joint tenancy with the surviving spouse, who then has new and different testamentary intentions. A will drafted to provide for a second spouse can be defeated if the home was held in joint tenancy with adult children from a first marriage.

Estate planning that involves real estate must align the form of title with the will's intentions. The two are not independent levers; they have to be set up coherently together.

What this means for your plan #

Two takeaways. First, the form of ownership of the matrimonial home is at least as important as the will, and arguably more — survivorship is the first decision the law makes about your property at death, and it happens before the will is opened. Second, the default joint tenancy that worked for a first marriage may be the wrong default for a second marriage; severance into tenancy in common is a common and well-understood remedy for the disinheritance problem in blended families.

When clients build their estate plan with It's Simple Will, the Will Creator prompts on the form of title for the principal residence and flags second-marriage scenarios where the will's intentions may be defeated by joint tenancy. For background on the underlying mechanics, our pillar on estate planning in Canada covers the deemed disposition, the spousal rollover, and how title and will interact.