Spouse's Equalization Claim vs Intestacy Share in Ontario

When a married person dies without a will, the surviving spouse is often told two different things: that the law gives them a share of the estate, and that they may be able to claim an equalization payment instead. Both are real, but you generally cannot have both, and there is a short window to decide.

This article explains the two routes in plain language, what the intestacy share can look like, how the election works, and what to gather before you speak with a lawyer. Which route is better depends on the family's finances, so this is a map, not a recommendation.

Two different claims for a surviving spouse

The first claim is the intestacy entitlement. It comes from Part II of the Succession Law Reform Act and sets out who inherits when there is no will. The second is the equalization entitlement under the Family Law Act. If the deceased spouse left no will, the surviving spouse must choose between them.

In plain terms, equalization looks at what each spouse built up during the marriage and balances it out. Intestacy looks only at the family tree and the size of the estate. Either one can produce the larger figure depending on the facts.

What the intestacy share looks like

If the deceased left a spouse but no children or other issue, the spouse takes the whole intestate estate. If there is a spouse and issue, the spouse takes everything when the net value of the intestate estate is no more than the preferential share, and otherwise takes the preferential share first. Net value is worked out after charges on the property, debts, funeral expenses and administration expenses.

The preferential share is $350,000 for people who die on or after March 1, 2021, and $200,000 for deaths before that date.

Above the preferential share, the remainder (the residue) is divided. A spouse with one child takes one-half of the residue, and a spouse with more than one child takes one-third, with the rest going to the issue. If a child died first leaving issue alive at the death, the spouse's fraction is worked out as if that child were living.

The election and the six-month deadline

To choose equalization, the election must be filed with the Estate Registrar, in the prescribed form, within six months after the first spouse's death. If no election is filed in time, you are deemed to have elected the intestacy entitlement unless a court orders otherwise.

A separate rule also bars an equalization application made more than six months after the first spouse's death, subject to the court extending the time. A court extension is not something to count on, so treat the six months as firm.

• The clock runs from the date of death, not from the date an estate trustee is appointed.
• Electing equalization means you are deemed to have disclaimed the intestacy entitlement.
• Doing nothing is also a choice: it is treated as taking the intestacy entitlement.

Situations that change the picture

• Common-law partners: unmarried common-law partners are not included as spouses for equalization or intestacy. A common-law partner is not a spouse for Part II of the Succession Law Reform Act. They may still apply for dependants' support from the estate.
• Separated spouses: spousal entitlements under Part II do not apply if the spouses were separated at death, for example after three years living apart because of marriage breakdown, or with a valid separation agreement and living separate and apart at death. This applies only to separations on or after the commencement of the relevant 2021 amendment. Whether this applies to you is worth confirming with a lawyer.
• The matrimonial home: both spouses have an equal right to possession of the matrimonial home. A spouse who occupied the home at the death may stay rent-free for 60 days after the death.
• Dependants' support: a court may order support from an estate where the deceased did not make adequate provision for a dependant's proper support, whether or not there was a will.

If the deceased left a will, different rules apply and this election is not the starting point. Get advice on the will itself.

What to do next

Write down the date of death today and mark six months from it. Then gather the information that lets someone compare the two routes.

• Date of death and proof of marriage.
• A list of what each spouse owned and owed, on the date of marriage, now, and at death.
• Details of the matrimonial home and how title is held.
• A list of children and other family members, including any who died earlier leaving children.
• Any separation agreement, court order or arbitration award.
• Bank, investment and pension statements, and any beneficiary designations.

Because the election is filed in a prescribed form and the deadline is short, speak with an Ontario estates lawyer early. They can calculate both outcomes and advise whether a late election could be sought if time has already passed.

Frequently asked questions