Spousal Election Under the Family Law Act: Executor Notice and Deadlines

When a spouse dies, the will may leave the surviving spouse less than they expected, or leave most of the estate to someone else. Ontario law gives a surviving spouse a choice in that situation: accept what the will provides, or ask for an equalization payment under the Family Law Act. The choice has a time limit, and if no election is made the spouse is deemed to take under the will or the Succession Law Reform Act.

If you are the executor, that deadline affects you too. It shapes when you can safely pay out beneficiaries and when land can be transferred. This article explains the six-month rule, what the form is, what happens if nothing is filed, and the practical steps an executor can take in the meantime.

What the spousal election is

A surviving spouse who wants an equalization payment under the Family Law Act has to say so formally. The document is called the Election of Surviving Spouse. In plain words, it is the spouse's written choice to pursue equalization instead of simply taking what the will gives.

Equalization is a way of looking at what each spouse built up during the marriage and balancing the difference. How that balance is worked out, and whether it would leave the survivor better off than the will does, depends on the couple's property, debts and history. That comparison is the heart of the decision, and it is worth having a lawyer run the numbers before the form is filed.

Ontario's own guidance warns that the form affects legal rights and recommends speaking with a lawyer. It is sensible to take that warning seriously and get advice before filing.

The six-month deadline and where the form goes

The election must be filed no later than six months from the date of the spouse's death. It is filed with the Estate Registrar for Ontario, c/o Toronto Estates Office, 330 University Avenue, Toronto M5G 1R7. Because the clock starts on the date of death, not the date the will is found or read, the time can pass quickly while a family is grieving and sorting out paperwork.

The same six-month period appears in a Land Registration bulletin, which says the spouse must elect within six months of death. That bulletin is old and uses older terminology, so treat it as background and confirm current practice with a lawyer.

What happens if no election is made

If the spouse makes no election, the spouse is deemed to take the benefits given by the will or under the Succession Law Reform Act, unless a court orders otherwise. In other words, silence is treated as a choice to accept the will.

Do not assume the deadline is flexible. If you are a spouse who is unsure, get advice early rather than near the end of the six months.

What the executor should do in the meantime

An executor, or estate trustee, carries out the will and administers the estate: winding up the deceased's affairs, collecting assets, paying taxes, bills and other debts, and distributing what is left to those entitled. Distribution follows the liquidation of assets and the payment of funeral and burial expenses and any debts. The spousal election adds a waiting period to that process.

No distribution of the estate should be made within six months of death unless the surviving spouse consents in writing or the court authorizes it. A transfer of land to a beneficiary within that period must be accompanied by an executor's statement that there is no surviving spouse, a court order, or the spouse's written consent. A sale of land is not barred, but the sale proceeds cannot be distributed during the six months.

Whether an executor has a separate duty to tell the spouse about the right to elect, and how that notice should be given, depends on the facts. It is a point to confirm with a lawyer rather than assume. As a practical matter, many executors choose to write to the spouse early so there is a clear record.

• Note the date of death and calculate the six-month date right away.
• Hold back distributions to beneficiaries until the spouse has consented in writing, the court has authorized them, or the six months have passed.
• Keep gathering assets, paying debts and funeral expenses, and keeping records as normal.
• If land is to be transferred early, make sure one of the three required items is ready: the executor's statement, a court order or the spouse's consent.
• If you sell property, keep the sale proceeds in the estate rather than distributing them.
• Keep copies of any letters or consents exchanged with the spouse.

What to do next

If you are the surviving spouse, ask a lawyer to compare what the will gives you with what equalization could give, well before the six months end. Bring the will, a list of the assets and debts you know about, and the date of death. If you decide to elect, confirm the current filing details before you send anything.

If you are the executor, treat the six-month date as a fixed point in your timeline. Hold distributions, keep proper records and ask a lawyer how to handle notice to the spouse and any early land transfer. Acting too soon can create problems that are hard to repair later.

Frequently asked questions