Yes. A legally married surviving spouse in Ontario can refuse what your will gives them and claim an equalization of net family property instead. That claim outranks the gifts in your will, and it can leave the rest of a fara'id distribution short. Here is how it works, and what drafting can do about it.
Our charges include applicable taxes. Disbursements are extra and billed at cost — itemized upfront, in writing, never hidden.
From $563.87 taxes included
Section 5(2) of the Family Law Act says that when a spouse dies, if the deceased's net family property exceeds the survivor's, the survivor is entitled to one-half the difference. Section 6(1) then says that where the deceased left a will, the surviving spouse "shall elect" to take under the will or to receive that section 5 entitlement. Nothing you write in your will removes that choice, and it exists whatever the will's religious basis.
The election is filed with the Estate Registrar for Ontario within six months of the death (s. 6(10)). If it is not filed in time the spouse is deemed to take under the will unless a court orders otherwise (s. 6(11)), and an equalization application must itself be brought within six months of the death (s. 7(3)(c)). Meanwhile s. 6(14) bars the estate trustee from distributing anything in those six months without the spouse's written consent or a court order.
Only a legally married spouse can elect. Part I of the Family Law Act applies to marriage, not to cohabitation. A nikah solemnized by an officiant registered under Ontario's Marriage Act, under a licence or banns, is a legal marriage and carries the full election right. A ceremony with no licence and no registered officiant generally is not, though the Marriage Act can validate some non-compliant ceremonies.
If the spouse elects, s. 6(8) revokes every gift the will makes to them and the will is read as if the spouse had died before you — unless the will expressly says the gifts are in addition to the section 5 entitlement (s. 6(5)). The share your will allocated to the spouse — one-eighth or one-quarter for a widow, one-quarter or one-half for a widower — simply disappears.
Then s. 6(12) puts the equalization entitlement ahead of the gifts in your will, ahead of anyone's intestate share, and ahead of a dependant support order under Part V of the Succession Law Reform Act — with one exception: an order in favour of a child of the deceased spouse. In practical terms, equalization is paid off the top and the fara'id shares are calculated on what is left.
That creates a drafting hole most template wills miss. If your will gives fixed fractions of the whole estate and the spouse's fraction is revoked, it is not automatically shared out among the others. Without a gift-over you can end up partly intestate, and the intestate portion is then distributed under Part II of the SLRA to your next of kin rather than on the shares you chose. The electing spouse takes no part of it: s. 6(9) deems a spouse who elects equalization to have disclaimed the Part II entitlement, so the $350,000 preferential share prescribed by O. Reg. 54/95 is not in play. The result is still a distribution nothing like the one you intended.
The Qur'anic shares for a surviving spouse are fractions of the estate: a widow takes one-eighth where the deceased leaves a child or a grandchild through a son, and one-quarter where he leaves neither; a widower takes one-quarter where there is a child or a grandchild through a son, and one-half where there is neither (Qur'an 4:12, and the four Sunni schools are agreed on these figures). Equalization is not a fraction of the estate at all. It is half the difference between what each spouse's net worth grew by over the marriage.
Those two numbers can be very far apart. In a long marriage where one spouse accumulated most of the assets, half the difference in net family property can dwarf one-eighth of the estate. The gap widens because a matrimonial home cannot be deducted as a date-of-marriage asset under the s. 4(1) definition of net family property — so a spouse who brought a paid-off house into the marriage carries its full value in. A plan that only works if nobody exercises a statutory right is not a plan.
Section 52 of the Family Law Act lets spouses agree, in a marriage contract, on their respective property rights "on death", which can include a release of equalization. That is the only reliable way to take the election off the table, and it is not bulletproof: s. 56(4) lets a court set a domestic contract aside where a party failed to disclose significant assets or debts, did not understand its nature or consequences, or on ordinary contract grounds. Disclosure and independent legal advice for both spouses are not optional, and s. 52(2) makes any clause limiting matrimonial home rights unenforceable.
Inside the will, three things help. Say expressly what happens to the spouse's share if an election revokes it. Express the shares as fractions of the residue after debts, funeral expenses and any equalization payment, rather than of the gross estate. And decide deliberately whether to use the s. 6(5) wording that gifts are in addition to equalization — it increases what an electing spouse receives.
One boundary we do not cross: whether your spouse may, as a matter of religion, release an inheritance right is a question for your imam or a scholar you trust. We draft the Ontario instrument to carry out the answer you bring back. Our flat fee for a will is $563.87, taxes included.
The election belongs to legally married spouses. If your nikah was performed by an officiant registered under Ontario's Marriage Act with a licence or banns, you are legally married and the election applies in full. If there was no licence and no registered officiant you are usually not legally married for this purpose, though the Marriage Act can validate some ceremonies performed in good faith. A partner who is not legally married may still qualify as a "spouse" for dependant support under Part V of the SLRA.
No. The election revokes the gifts the will makes to the electing spouse and the will is read as if that spouse had predeceased you (s. 6(8)). The rest of the will still operates. But because equalization has priority over the gifts in the will (s. 6(12)), it is satisfied first and everyone else divides a smaller estate.
No. Ontario law is indifferent to a beneficiary's religion. Your will can leave her anything or nothing, and if you are legally married she can elect equalization either way. The classical majority Sunni position treats difference of religion as a bar to inheritance between spouses, and contemporary scholars differ on how that applies in Canada. That question belongs with your imam or scholar, not with us. Whatever answer you take, the Ontario election risk is unchanged — and usually highest in exactly this situation.
Under Ontario law, yes — testamentary freedom lets you leave your spouse whatever you choose. The religious side is not so simple: on the majority Sunni view a bequest beyond the fixed share is a bequest to an heir and generally requires the other heirs' consent, and the wasiyya itself is capped at one-third of the estate after debts and funeral expenses. That is a question for your scholar; once you decide, the drafting is straightforward.
Six months from the date of death, unless the surviving spouse consents in writing or the court authorizes an earlier distribution (s. 6(14)). Once the trustee has notice of an equalization application, nothing may be distributed without the applicant's consent or a court order (s. 6(15)), and a trustee who distributes in breach can be personally liable (s. 6(19)). Reasonable advances to dependants for support are the exception (s. 6(17)).
Open your file tonight — a licensed Ontario lawyer will confirm everything with you by tomorrow.