In an Ontario divorce, pre-purchased burial plots or crypts are considered marital property and must be valued on your Form 13.1. If a family mausoleum is worth $25,000 CAD, its value must be equalized, meaning one spouse must buy the other out or the rights must be sold back to the cemetery.
Dividing assets during a separation is always stressful, but it becomes particularly morbid and emotional when dealing with end-of-life planning. Many couples in Ontario pre-purchase double burial plots, niches, or family crypts during their marriage to secure peace of mind. 🕯️ However, when a divorce happens, the idea of spending eternity next to an ex-spouse is usually the last thing anyone wants. Legally, these pre-purchased resting places are assets with significant financial value.
Under the Ontario Family Law Act, interment rights (the legal term for owning a burial plot) are treated like almost any other piece of property. Whether the plot is located in a historic Toronto cemetery, a sprawling park in Mississauga, or a quiet Hamilton graveyard, it must be accounted for. This guide explains the strict provincial rules governed by the Bereavement Authority of Ontario (BAO) and how family lawyers manage the appraisal and division of these unique assets to finalize your separation.
Step-by-Step Process for Equalizing a Burial Plot in Ontario
You do not actually “own” the land in a cemetery; you own the “interment rights” to use that specific space. Because cemetery land is highly regulated in Ontario, you cannot simply sell your crypt on Kijiji. Here is how you handle this asset during a divorce.
Step 1: Locate the Interment Rights Certificate
The first step is proving ownership. You must locate your original contract and the Interment Rights Certificate provided by the cemetery operator. This document outlines exactly what was purchased (e.g., two casket graves, a cremation niche, or a private mausoleum) and lists who the legal rights holders are. Both spouses’ names are typically on this document if it was bought jointly during the marriage.
Step 2: Obtain an Official Appraisal
To divide your net family property fairly, you must determine the plot’s current value for your Form 13.1 Financial Statement. 💵 You cannot guess the value. You must contact the specific cemetery where the plot is located and ask for their current price list. Under BAO regulations, cemeteries must maintain public price lists. The value of the plot for equalization purposes is the current market value of an identical plot today, minus any mandatory administrative fees the cemetery charges for transferring it.
Step 3: Decide on a Buy-Out or Resale
Once you know the plot is worth, for example, $10,000 CAD, the spouses must make a decision. One spouse can keep the plot and “buy out” the other spouse’s half (paying them $5,000 CAD in equalization). Alternatively, if neither spouse wants it, Ontario law requires cemetery operators to buy back unused interment rights if the consumer wishes to cancel the contract, though they are allowed to deduct a portion for the care and maintenance fund.
Step 4: Draft the Separation Agreement
Your family lawyer will explicitly include the burial plot in the final Separation Agreement. 📝 The agreement will clearly state which spouse is surrendering their rights, how much financial credit they are receiving in exchange, and will include a mandatory clause compelling the surrendering spouse to sign all necessary transfer forms required by the cemetery.
Step 5: Execute the Transfer with the Cemetery
Finally, the spouse giving up the plot must formally remove their name. This requires signing a transfer document directly with the cemetery operator. The cemetery will charge a small administrative fee to issue a new Interment Rights Certificate solely in the name of the spouse who is keeping the plot. Without this final step, the ex-spouse technically still retains the legal right to be buried there.
How Much Does it Cost to Transfer or Appraise?
While the burial plot itself can be worth tens of thousands of dollars, the administrative costs to appraise and transfer it are relatively small.
| Cemetery Appraisal / Valuation | Usually $0 CAD (Cemeteries provide current price lists for free upon request). |
| Cemetery Transfer Fee | Typically ranges from $100 to $300 CAD charged by the cemetery operator. |
| Lawyer Drafting Fees | Included in your overall Separation Agreement drafting (usually $2,500 to $5,000+ CAD total). |
Keep in mind that if you choose to sell the plot back to the cemetery entirely, you will not receive 100% of the current market value. By law, the money previously deposited into the cemetery’s Care and Maintenance Fund cannot be refunded.
How Long Does the Process Take?
The timeline for dividing a burial plot relies entirely on the speed of your divorce negotiations. ⏱️ Contacting the cemetery for a current valuation takes only a few days. However, finalizing a comprehensive Separation Agreement and securing the equalization payment typically takes 3 to 6 months. Once the agreement is signed, the actual paperwork to transfer the rights at the cemetery office can usually be completed in a single afternoon.
Frequently Asked Questions (FAQ)
Can I sell my burial plot to a random person online?
In Ontario, selling interment rights privately is heavily restricted. The Funeral, Burial and Cremation Services Act dictates that you can only sell to a third party if the cemetery bylaws explicitly permit it. In most cases, you must sell it back directly to the cemetery operator.
What if my ex-spouse’s parents bought the plot for us?
If the plot was gifted to both of you, it is still considered marital property and must be equalized. If it was gifted solely to your ex-spouse, it might be excluded from Net Family Property, but your family lawyer will need to review the specific Interment Rights Certificate to confirm legal ownership.
What happens if one person is already buried in a double plot?
If a plot is partially used (e.g., a child or family member is already buried there), it generally cannot be sold or easily transferred. The remaining empty space may still hold value, but practical and emotional considerations usually mean the surviving spouse will retain the rights and compensate the ex-partner financially.
Can the court force us to sell the family mausoleum?
Yes. If neither party can afford to buy out the other’s share, a judge at the Superior Court of Justice has the authority to order the asset sold back to the cemetery, with the resulting cash proceeds split equally between the separating spouses.
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