Surviving Spouse Election: Equalization or the Will in Ontario

If your spouse has died, you may be facing a decision with a short clock. Ontario law lets a surviving spouse choose between what the will gives them and a financial equalization claim. Which is better depends on the numbers, and the deadline is short.

This article explains the choice, the six-month deadline, how to compare the two options and what can happen if you miss the date. It is general information, and a lawyer or accountant can run the figures for your situation.

The choice you have to make

Under Family Law Act s. 5(2), if the deceased spouse's net family property exceeds the survivor's, the survivor is entitled to one-half of the difference. Section 6 gives the survivor a choice: take under the will, or take the s. 5 entitlement.

Only spouses have this choice. For the Family Law Act, a spouse is someone married to the deceased, or who entered into a marriage that is voidable or void where the person relying on it acted in good faith. Unmarried partners are not spouses for the equalization entitlement.

The six-month deadline

The election must be filed with the Estate Registrar for Ontario within six months after the first spouse's death. Note that the clock runs from the date of death, not from the date probate is granted. An application for the s. 5 entitlement is also barred if brought more than six months after the first spouse's death.

If no election is filed in time, the survivor is deemed to have elected the will or the SLRA entitlement, unless the court orders otherwise. In other words, missing the date can mean giving up the equalization claim.

How to compare the options

Comparing means putting a dollar figure on each side. On the will side, add up what the will, or the intestacy rules, would actually give you. On the equalization side, estimate one-half of the difference between the net family property of the two spouses, if the deceased's is higher.

Two details can change the result. Certain amounts you receive, such as insurance proceeds, pension lump sums and survivorship property, are credited against the equalization entitlement, unless the deceased's written instrument says otherwise. And if you are comparing against an intestacy, the rules depend on who survives.

• Spouse and no children: the spouse takes everything
• Spouse and children: the spouse first takes the preferential share, which is $350,000 for deaths on or after March 1, 2021
• After that, the spouse takes one-half of the residue if there is one child, or one-third if there are two or more children

Valuing net family property can be technical, so many people ask an accountant or lawyer to help before they elect.

If you have missed the date

The court can extend time limits under Family Law Act s. 2(8) where there are apparent grounds for relief, the delay was in good faith and no one suffers substantial prejudice. That is not automatic, and it requires a court application.

In the Toronto Region, applications to extend time to make a s. 6(1) election should be brought on the Estates List. Contested proceedings under Family Law Act s. 5(2) are among those that go through mandatory mediation under Rule 75.1.

What to do next

Count six months from the date of death and put the date in your calendar now. Do not assume the estate trustee or anyone else will file the election for you.

• Write down the date of death and the six-month deadline
• Get a copy of the will, if there is one
• List your own assets and debts and, as far as you can, your spouse's, as of the relevant dates
• Gather records of insurance, pensions and jointly owned property, since some are credited against equalization
• Speak with a lawyer or accountant before you file, so you understand the figures and the consequences of each choice

Frequently asked questions