- Ontario's Family Law Act (FLA) gives married spouses a right to "equalize" net family property when a marriage ends — including when it ends through death.
- A spouse generally cannot take both the full equalization payment and everything the will provides — the election is meant to be a genuine either/or choice between two different ways of…
- The spousal election must be made within six months of the deceased spouse's death.
When a married person dies in Ontario, their surviving spouse does not automatically have to accept what the will (or the intestacy rules) gives them. Ontario's family law gives a surviving spouse a second option: to step outside the estate and claim an equalization payment instead. This choice, known as the spousal election, exists because a will can sometimes leave a spouse with far less than family law would otherwise recognize as their fair share of the marriage.
Deciding between these two paths is rarely simple, and the decision comes with a firm deadline. Understanding how the election works — and why it exists — is the first step to making the right call for your situation.
What the Spousal Election Actually Is
Ontario's Family Law Act (FLA) gives married spouses a right to "equalize" net family property when a marriage ends — including when it ends through death. Ordinarily, a surviving spouse simply inherits whatever the will provides, or, if there is no will, whatever the intestacy rules provide. The spousal election lets a surviving married spouse choose instead to be treated as though the marriage had ended in separation, triggering an equalization payment calculated the same way it would be on a divorce.
This right belongs only to a legally married spouse. A common-law partner, no matter how long the relationship lasted, has no equivalent right to elect equalization — their options after a partner's death are more limited and depend on separate legal principles.
Two Paths, Compared
| Taking Under the Will (or Intestacy) | Electing Equalization | |
|---|---|---|
| Legal basis | The deceased's will, or Ontario's intestacy rules if there is no will | Family Law Act equalization of net family property |
| What you receive | Whatever the will specifies, or the intestacy share | A payment reflecting your share of the growth in net family property during the marriage |
| Effect on other beneficiaries | None — the will's other gifts proceed as written | Can reduce what other beneficiaries ultimately receive, since the payment comes out of the estate |
| Who qualifies | Anyone named in the will, or an intestate heir | Only a legally married spouse |
| Deadline to choose | No election needed — this is the default | A strict deadline applies (see below) |
A spouse generally cannot take both the full equalization payment and everything the will provides — the election is meant to be a genuine either/or choice between two different ways of valuing what the spouse is owed.
The Deadline and How to Elect
The spousal election must be made within six months of the deceased spouse's death. It is filed with the Estate Registrar for Ontario, using the prescribed election form. Because the deadline is measured from the date of death — not the date probate is granted or the date the spouse actually learns the contents of the will — it can arrive faster than people expect while a family is still grieving.
If no election is filed within the six-month window, the surviving spouse is deemed by law to have taken under the will, or under the intestacy rules if there is no will. A court can extend the period on motion in limited circumstances, but relying on an extension being granted is a risk, not a plan. Anyone considering this choice should get advice well before the deadline, not after it has passed.
Why a Spouse Might — or Might Not — Choose to Elect
When equalization can make sense
If the will leaves the surviving spouse a modest share while most of the growth in the couple's property happened during the marriage, the equalization calculation may produce a larger payment than the will does. This is more likely in longer marriages, or where one spouse's assets grew substantially more than the other's.
When staying under the will can make sense
If the will already provides generously for the spouse, or if the matrimonial home and other jointly held assets already pass to the spouse outside the estate, the equalization path may not offer any real advantage — and pursuing it anyway can complicate matters for other beneficiaries unnecessarily.
Why this decision needs proper numbers, not guesswork
Comparing these two paths requires calculating net family property as of the date of death, which involves valuing assets, debts, and certain exclusions. This is not something to estimate informally — an inaccurate comparison can lead a spouse to make an irreversible election based on the wrong numbers.
Frequently asked questions
Can a common-law spouse make this election?
No. The spousal election under the Family Law Act is only available to a legally married spouse. A common-law partner may have other options, such as a dependant's support claim, but not this particular election.
Does making the election cancel the entire will?
No. Electing equalization affects what the surviving spouse personally receives from the estate. It does not automatically cancel gifts the will makes to other people, though it can reduce the pool of assets available to satisfy those gifts.
What happens if I miss the six-month deadline?
You are generally deemed to have taken under the will or intestacy instead. A court has discretion to extend the deadline in limited circumstances, but there is no guarantee an extension will be granted, so it should never be relied on as a backup plan.
Do I need to go to court to make the election?
Making the election itself is a filing, not a lawsuit. However, if the estate trustee disputes the valuation of net family property or the estate's assets, the matter can end up before the Superior Court of Justice.
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