Spouse Dies in Ontario: Take Under the Will or Choose Equalization?

When your spouse dies, the will may leave you less than you would receive if the marriage property were divided as it would be on a separation. Ontario law gives a married surviving spouse a choice, and that choice has a short deadline and real consequences.

This article explains how the choice works, what you give up by choosing equalization, and how the deadline operates. It applies to married spouses only. Unmarried partners are not covered by this process, so they should get legal advice about their own position.

How equalization works when a spouse dies

If the deceased spouse's net family property is larger than yours, you are entitled to one-half of the difference. The valuation date is the day before the death.

Equalization is a payment of money. It is not a split of each asset. Net family property is generally the value of what a spouse owns on the valuation date, less debts and excluded property, and less the net value of property owned at the date of marriage, other than a matrimonial home.

The choice: will or equalization

If your spouse died leaving a will, you must elect either to take under the will or to receive the equalization entitlement. If your spouse died without a will, you elect between your intestate share under Part II of the Succession Law Reform Act and equalization.

The choice matters because the two routes can give very different results. Which one is better depends on the value of the estate, the terms of the will and the property each spouse held, so it is worth getting legal and accounting advice before you decide.

What you give up or have credited

• If you elect equalization, the gifts to you in the will are revoked unless the will expressly provides otherwise.
• You keep will gifts in addition to equalization only if the will expressly says so.
• Life insurance proceeds, lump-sum pension payments and property passing to you by right of survivorship because of the death are credited against your equalization entitlement.
• Your equalization entitlement has priority over gifts in the will, over intestate shares, and over dependant-support orders, except an order in favour of a child of the deceased.

If a spouse dies owning an interest in a matrimonial home as a joint tenant with someone other than the other spouse, the joint tenancy is deemed severed immediately before the death. Whether and how that affects your claim depends on the facts and is worth confirming with a lawyer.

Deadlines and what happens if you miss them

The election must be in the prescribed form and filed in the office of the Estate Registrar for Ontario within six months after the death. The prescribed form is Form 1, Election of Surviving Spouse, dated April 10, 2017, available on www.ontariocourtforms.on.ca.

If you do not file in time, you are deemed to have elected to take under the will or the Succession Law Reform Act, or both, unless the court orders otherwise on application. A court may extend a time limit in the Act only if there are apparent grounds for relief, the relief is unavailable because of delay incurred in good faith, and no person will suffer substantial prejudice because of the delay. That relief is discretionary, so do not rely on it.

A separate time limit applies to an equalization application. It cannot be brought later than six months after the first spouse's death.

No distribution of the estate may be made within six months of the death.

What to do next

• Note the date of death and count six months from it right away.
• Get a copy of the will, if there is one, and ask what it leaves you.
• List what each spouse owned and owed, including pensions, insurance and any matrimonial home.
• Ask a lawyer and an accountant to compare the will or intestate share with equalization.
• Download Form 1 from www.ontariocourtforms.on.ca and check that you have the current version before filing, as a newer version may exist.
• File the completed form with the Estate Registrar for Ontario before the deadline.

Frequently asked questions