Compare your rights before making an election

When a married spouse dies, the survivor may face an important choice: receive the entitlement under the will, or elect to claim equalization under Ontario’s Family Law Act. A corresponding choice can arise where there is no will.

Equalization is a calculation involving both spouses’ net family properties. It is not simply a claim to half of the estate. The comparison requires financial information and attention to the legal consequences of the election.

Why the will is only part of the assessment

The review may involve property values, debts, marriage-date assets, exclusions, the matrimonial home and any domestic contract. Life insurance, pension benefits and property passing by survivorship can also affect the comparison and applicable credits.

Electing equalization generally means giving up gifts under the will and the entitlement on intestacy, subject to statutory qualifications and the wording of relevant documents. It should not be assumed that a spouse can retain every death benefit and also collect the full equalization amount.

The election deadline

The usual deadline for filing a surviving spouse’s election is six months after the spouse’s death. Court relief may be available in some circumstances, but should not be assumed. Filing an election and taking the steps needed to enforce a claim are separate matters requiring advice.

A family law perspective on an estate decision

Thomas J. MacLennan’s family law practice provides a relevant foundation for reviewing the financial disclosure, property issues and domestic agreements involved in a surviving spouse’s election.

Call 416-591-1354 to arrange a consultation. Bring the will, any marriage or separation agreement, available financial records and information about insurance, pensions and jointly held property.

Related estate and family law advice

Estate litigation overview · Will challenges · Spousal equalization after death · Dependant support claims