Surviving Spouse in Ontario: Election and Equalization Explained

When a married spouse dies, the surviving spouse is often handed a will and a deadline in the same week. The will may give you less than you would receive if you claimed an equalization payment, or it may give you more. Choosing without comparing the two can be costly.

This article explains the choice Ontario law gives a surviving spouse, the timing, what happens to gifts in the will, and how common-law and separated spouses are treated.

The two options

When a married spouse dies, the survivor is entitled to one-half of the difference between the spouses' net family properties, if the deceased's was the greater (Family Law Act s. 5(2)). This is the equalization entitlement.

You cannot usually have both. The surviving spouse must elect either to take under the will (or on intestacy) or to receive the equalization entitlement. If there is no will, the intestacy rules apply. A married spouse receives a preferential share of $350,000 for deaths on or after March 1, 2021, and $200,000 for earlier deaths. The spouse also gets one-half of the residue if there is one child, or one-third if there is more than one.

The six-month deadline

The election is made on Form 1, "Election of Surviving Spouse", and must be filed with the Estate Registrar for Ontario within six months after the spouse's death. If no election is filed in time, you are deemed to have elected to take under the will or the Succession Law Reform Act, unless the court orders otherwise on application.

Because the default is the will, a missed deadline can quietly end an equalization claim. If you are close to the date, speak with a lawyer promptly about whether a court application is realistic.

What the election does to the will

If you elect equalization, the gifts to you in the will are revoked, unless the will expressly says they are in addition to the equalization entitlement. That is why you need to read the will carefully and understand what you give up.

• Ask for a list of the assets and debts of both spouses at key dates, because equalization depends on net family properties.
• Check whether the will says anything about equalization.
• Compare the total value of the will's gifts with a realistic equalization estimate.
• Remember that jointly held assets and beneficiary designations may pass outside the will.

Restrictions on distributing the estate

The estate trustee must not distribute within six months after the spouse's death unless the surviving spouse consents in writing or the court authorizes it. Once the personal representative has notice of an application under Part I, distribution is also barred.

There is an exception for support. These bars do not prevent reasonable advances to the deceased spouse's dependants for their support. If you are an estate trustee, be cautious about early payments, since a lawyer can confirm what is safe.

Common-law and separated spouses

Equalization under Part I of the Family Law Act is available only to married spouses. The wider definition that includes unmarried cohabitants applies only to support under Part III. A common-law partner has no share of an intestate estate.

Common-law partners still have options. For dependant support, an unmarried partner who cohabited for at least three years, or who cohabited in a relationship of some permanence and is a parent of a child, can apply if the deceased did not make adequate provision for their support. That application must be made within six months from the grant of letters probate or administration. A late application may be allowed for any portion of the estate still undistributed. A common-law partner can also apply to be estate trustee.

For separated spouses, the intestacy rules for spouses do not apply if the spouses were separated at the time of death, as defined in the Succession Law Reform Act.

What to do next

• Note the date of death and mark the six-month deadline in your calendar.
• Get a copy of the will and ask the estate trustee about the size of the estate.
• Collect financial records for both spouses, including statements, pensions and property values.
• Ask a lawyer or accountant to compare the two options before you file anything.
• Do not sign a consent to early distribution until you understand your choice.

Frequently asked questions