Owning real estate as a couple

At the time of purchase

You’ve found a home and secured financing, and you’re ready to embark on a joint purchase. At this stage, what should you prioritize? Each spouse’s share (legal aspect) and each spouse’s down payment (financial aspect) are key.

What is a share?

• The share determines each spouse’s responsibility for expenses.
• According to the Civil Code of Québec, the shares of co-owners are presumed to be equal (50% each), unless unequal shares have been agreed upon between them.
• The Civil Code also provides that co-owners must pay the ownership expenses according to their respective shares, with a larger share meaning a heavier financial burden. That’s why it’s important to establish these shares from the outset, as they will have an impact when the home is sold or in the event of a separation.
• Each spouse’s share must be decided by the couple, and a frank discussion is the best way to reach an agreement.
• There is indeed no one-size-fits-all solution, and each couple is free to agree on the arrangement that works best for them.
• For example, the share could be based on each spouse’s disposable income (after taxes and social security contributions), but other factors may also come into play, particularly each spouse’s financial obligations (outstanding debt relative to income).
• Bear in mind as well that mortgage payments are just one of many expenses associated with home ownership: there are also property taxes, home insurance, condo fees, maintenance costs, repairs…
• Even if the spouses decide on unequal shares, it’s important to know that most financial institutions require each spouse to be jointly and severally, or solidarily, responsible for the mortgage, meaning that each is obligated to pay the entire loan in the event of the other spouse’s default.

Unequal down payments

• It is essential to document in writing an unequal down payment and to agree on how each spouse will recover this down payment when the home is sold, including how the proportional appreciation generated by the down payment will be handled.
• Here again, discussing this issue as a couple will help you reach an agreement.

Your essential legal documents: agreements

There are two key agreements in which the details of the purchase must be recorded:

• The purchase agreement – The exact share of each spouse is recorded in the agreement by a notary. This document is filed with the land registry and is therefore on public record.
• The cohabitation agreement – The share and/or unequal down payment of each spouse is set forth in the agreement either by the couple or by a legal professional. The cohabitation agreement may also include other provisions such as:
  • The terms for partitioning all the property between the spouses in the event of a separation (not just the jointly owned property).
  • A list of each spouse’s assets and liabilities at the start of their cohabitation.
  • Clauses regarding the terms of ownership of the property purchased by the couple (proportion of the ownership expenses to be paid by each of the spouses), contribution from a parent of one of the spouses (inheritance or gift).

N.B.: These documents do not allow you to bequeath your share to your spouse in the event of death: such a provision must be included in a will.

What happens when one of the spouses dies?

• In such case, the rules of legal devolution (set forth in the Civil Code) apply to determine the heirs of a person who dies intestate, that is, without a will.
• These rules of legal devolution depend on several factors:
  • the civil status of the deceased (married, single, divorced, widowed)
  • the existence of a prenuptial agreement
  • whether the couple have children together (parental union regime)
  • A surviving spouse may receive only one-third or two-thirds of the estate, or may not be legally entitled to anything at all if their spouse dies intestate.

• If married spouses do not have a marriage contract containing a conventional appointment clause (better known as a “surviving spouse” clause) and if they have no will, the surviving spouse generally inherits only a share of the estate.
• For the surviving spouse to inherit the deceased spouse’s entire share of the property (and even of their estate), a will is required. This avoids a situation where the surviving spouse ends up being a co-owner with their in-laws or even with their minor children—situations best avoided!

N.B.: In the case of married or civil union spouses, the family patrimony rules apply as a matter of public policy and are therefore mandatory. A married or civil union spouse may be entitled by priority to a portion of the property’s value upon death, even if they do not inherit any share of the property. The same reasoning applies to spouses subject to the parental union regime in effect since June 30, 2025.