Surviving Spouse Election Between Will and Family Law Act in Ontario

If your spouse has died and left a will, you may have a choice to make: accept what the will gives you, or claim an equalization payment under the Family Law Act. The choice has a firm deadline, and it is easy to miss while you are grieving and sorting out funerals and paperwork.

This article explains how the election works, what the deadline is, and what to weigh. It is general information, and the numbers in your own case will drive the decision.

What the election is

Under the Family Law Act, when a spouse dies leaving a will, the surviving spouse must elect either to take under the will or to receive the equalization entitlement under section 5 of the Act. Equalization is the Act's way of evening out the value of what each spouse built up during the marriage.

The election is for married spouses. Common-law couples are not covered by the Family Law Act property-division rules and are not legally required to split property acquired while living together. If you were in a common-law relationship, speak with a lawyer about what other options might exist.

The two choices side by side

Which is better depends on the size of the estate, what the will gives you, the value of each spouse's property, and exclusions such as inheritances. A lawyer or accountant can help compare the numbers.

The six-month deadline and what happens if you miss it

• The election must be in the prescribed form and filed with the Estate Registrar for Ontario within six months after the first spouse's death.
• Ontario government guidance names the form as the Election of Surviving Spouse and says it must be filed no later than six months from the date of death.
• A surviving spouse who does not file in time is deemed to have elected to take under the will or under the Succession Law Reform Act, unless the court orders otherwise on application.
• No distribution may be made from the deceased spouse's estate within six months of death unless the surviving spouse consents in writing or the court authorizes it.

The six-month election deadline is separate from the limitation period for an equalization claim when spouses separate, which is six years from the day of separation or two years from the day a divorce is final, whichever comes first. Do not assume that longer period applies after a death.

The estate trustee's job is to carry out the will, wind up the deceased's affairs, pay taxes, bills and other debts, and then distribute the estate according to the will. A trustee who distributes assets before getting a CRA clearance certificate (Form TX19) is personally liable for unpaid amounts, up to the value of the assets distributed. That is one reason the estate may not move as quickly as you would like.

What to weigh before you decide

Equalization looks at property each spouse acquired, but some property is excluded. Property a married spouse acquired by gift or inheritance from a third person after the date of marriage is excluded from net family property, and so is property into which that inheritance can be traced, except a matrimonial home.

A family home that was inherited or received as a gift is not excluded property, so its value is shared on separation. How that interacts with an election on death is a point to confirm with a lawyer.

• What the will gives you, including whether it includes the home, investments or income.
• Whether the deceased spouse had significant property or debts.
• Any property you own that came from gifts or inheritances.
• Tax: property transferred to a surviving spouse or common-law partner resident in Canada can avoid a gain or loss on the final return, and it generally must vest in that person within 36 months of death.
• Whether the estate is likely to be able to pay an equalization amount.

For a death between January 1 and October 31, the deceased's final tax return is due April 30 of the following year, and for a death between November 1 and December 31 it is due six months after the death. If the deceased, or their spouse or common-law partner, was carrying on a business, the final return is instead due June 15 of the year after death (for deaths January 1 to December 15), although any balance owing is still due by the normal payment date. How the final return affects your choice depends on the estate, so it is worth confirming with an accountant.

What to do next

• Write down the date of death and count forward six months right away.
• Get a copy of the will and ask the estate trustee for an estimate of the estate's assets and debts.
• Gather statements showing what you and your spouse owned on the key dates.
• Ask a lawyer to explain the likely result of each choice before you sign anything.
• If time is running short, speak with a lawyer promptly about whether a court application is an option, since a court can order otherwise when no election is filed in time.

Frequently asked questions