In an Ontario divorce, pre-purchased cemetery plots are considered property and must be included in your Net Family Property statement. You must value the plots based on the cemetery’s current market rate or buyback price on your date of separation, and legally assign the interment rights in your Separation Agreement.
When couples plan for their “forever,” it often includes practical end-of-life decisions. 📍 It is very common for married couples in Toronto, Ottawa, and London to pre-purchase double cemetery plots or family mausoleum crypts to save money and secure a resting place together. However, when a marriage breaks down, this morbid but practical asset suddenly becomes a strange and emotional point of contention. Deciding who gets to keep the burial plots, or whether they should be sold off, is an easily overlooked but legally necessary part of finalizing a divorce.
Under Ontario’s Family Law Act, absolutely everything of value acquired during the marriage must be accounted for on the date of separation. Pre-purchased plots are technically known as “Interment Rights” under the Funeral, Burial and Cremation Services Act, 2002. You do not actually own the dirt; you own a highly regulated contract that holds financial value. If you ignore this asset, you might inadvertently leave a financial mess for your estate. Navigating the transfer or sale of these rights requires a family law firm that understands how to finalize every loose end of your marital estate.
Step-by-Step Process for Dividing Burial Plots in Ontario
Cemetery contracts are heavily regulated by the province, meaning you cannot just hand the deed over to your ex-spouse on a napkin. 📋 You must follow a formal process to evaluate and reassign the interment rights.
Step 1: Review the Interment Rights Certificate
The first step is to locate your original paperwork from the cemetery. You need to review the Interment Rights Certificate to see exactly whose name is on the contract. Often, plots are purchased in joint names, or sometimes purchased by one spouse using joint funds. This document will also outline the cemetery’s specific bylaws regarding transferring the rights to third parties or selling them back to the operator.
Step 2: Determine the V-Date Value
For your Net Family Property (NFP) equalization, you cannot use the price you paid for the plots twenty years ago. You must determine their Fair Market Value on your Valuation Date (your date of separation). Your lawyer will advise you to contact the cemetery and ask for their current price list for an identical plot, or ask for their mandatory “buyback” quote. By law in Ontario, if a cemetery allows resales, they usually buy it back at the current market rate, less a modest administrative fee.
Step 3: Negotiate the Asset in the Separation Agreement
Once the value is established, you and your ex must decide what to do. Generally, there are two paths: one spouse keeps the plots (and the value is added to their side of the NFP, requiring them to “buy out” the other spouse’s half), or you both agree to sell the plots back to the cemetery and split the cash. Your family lawyer will draft a specific clause in your Separation Agreement legally finalizing this choice.
Step 4: Execute the Transfer with the Cemetery
If one spouse is keeping the plots, the transfer is not official until the cemetery’s registry is updated. You must take a notarized copy of your Separation Agreement to the cemetery’s administrative office. They will cancel the old joint certificate and issue a brand-new Interment Rights Certificate solely in the name of the spouse retaining the asset. This ensures your ex-spouse cannot accidentally be interred there decades down the line.
How Much Does it Cost in Ontario?
Dealing with cemetery rights usually involves administrative fees rather than heavy litigation costs. 💰 Here are the typical expenses you can expect in 2026:
- Cemetery Transfer/Admin Fees: Under provincial law, cemeteries can charge a reasonable administrative fee to rewrite the contract, usually between $100 and $300 CAD.
- Family Lawyer Fees: Drafting the specific clauses regarding cemetery plots within your broader Separation Agreement generally adds $300 to $800 CAD in legal time.
- Buyback Penalties: If you sell the plot back to the cemetery, they are generally required to pay you the current market value, but they are allowed to deduct an admin fee (often around 10%).
How Long Does the Process Take?
Resolving this niche asset is usually quite fast compared to selling a house. ⏱ Getting a current valuation quote from the cemetery operator takes only 1 to 2 weeks. Negotiating the asset and incorporating it into your overall NFP settlement will take part of the broader 3 to 6 month divorce negotiation process. Once the Separation Agreement is signed, the cemetery can usually process the paperwork and issue a new certificate within 30 days.
Options for Disposing of the Plots
Separating couples generally have three choices when dealing with interment rights. 🧲 Here is a comparison:
| Strategy | How it Works | Best Use Case |
|---|---|---|
| One Spouse Keeps Both | Spouse A takes sole ownership and buys out Spouse B’s share via NFP equalization. | When one spouse wants to use the plots for themselves and their new partner or family. |
| Sell Back to Cemetery | The rights are sold to the operator, and the resulting cash is split 50/50. | When neither spouse wants to be buried there anymore. |
| Divide the Plots (If Allowed) | If there are two distinct plots, the cemetery issues two separate single certificates. | Rarely used, as most divorced couples do not wish to be buried next to each other. |
Frequently Asked Questions (FAQ)
Can I privately sell the plot to a stranger on Kijiji?
In Ontario, this depends strictly on the specific cemetery’s bylaws. Many cemeteries prohibit private third-party sales and require you to sell the rights directly back to them. You must review your original contract before attempting a private sale.
What if the plot was gifted to us by my parents?
Gifts given to a married couple jointly are generally subject to equal division. However, if the plot was placed solely in your name and you can prove it was a gift to you alone, it might be excluded from the Net Family Property calculation.
Do I have to pay capital gains tax if the plot went up in value?
Generally, no. The Canada Revenue Agency (CRA) usually considers cemetery plots as personal-use property. Because you did not buy them as a commercial investment to make a profit, you typically do not pay capital gains tax if you sell them back.
What happens if we forget to put it in the Separation Agreement?
If the rights remain in joint names, you will both technically still have the right to be buried there. This can cause massive estate litigation issues for your children or new spouses decades later when it comes time for interment.
Does this affect spousal support?
No. Cemetery plots are strictly considered capital assets and are dealt with under property equalization. They do not generate income, so they have zero impact on the calculation of spousal support or child support.
Leave a Reply