What is the spousal election in Ontario and when would a surviving spouse use it?

When a married person dies in Ontario, their surviving spouse has a choice: accept whatever the will provides, or elect to receive an equalization payment under Part I of the Family Law Act instead. This is called the spousal election.

The equalization payment under the Family Law Act is calculated the same way it would be in a separation — it is based on the difference between the net family properties of the two spouses accumulated during the marriage. If the deceased spouse accumulated significantly more wealth during the marriage than the survivor, the equalization payment may be larger than what the will provides.

A surviving spouse must make this election within six months of the death. If they do nothing, they are deemed to have accepted the will (or the intestacy distribution). Because the election deadline is firm, and because the calculations can be complex, legal advice should be sought promptly after a spouse's death.

The spousal election is most relevant in blended family situations where the deceased left the bulk of the estate to children from a prior relationship, leaving the surviving spouse with little. It provides a legal floor below which a married surviving spouse's share cannot fall, regardless of what the will says.