The Spousal Election Under Ontario's Family Law Act: Inherit or Equalize?
When a married spouse dies in Ontario, the survivor does not simply take what the will gives them. Section 6 of the Family Law Act gives them a choice: accept the entitlement under the will, or under the intestacy rules if there is no will, or instead claim an equalization of net family property, calculated as though the marriage had ended in separation. The election must be filed in the prescribed form with the Estate Registrar for Ontario within six months of the death, and a survivor who does not file is deemed to have elected to take under the will or the intestacy, unless the court orders otherwise. The deadline is real but it is not always fatal, because the court has an express power to extend it. This article explains how the choice is calculated, what gets deducted from an equalization claim, what electing costs the survivor, and the restrictions the election places on the estate trustee.
Who Can Elect, and What Is the Choice?
Only a legally married spouse can elect. Common-law partners have no equalization rights on death in Ontario, regardless of how long the relationship lasted. Our guide to what happens when someone dies without a will in Ontario sets out where that leaves an unmarried partner.
The choice depends on whether there is a will. Section 6(1) applies where the deceased left a will: the survivor elects to take under the will or to receive the entitlement under section 5. Section 6(2) applies on an intestacy: the choice is between the entitlement under Part II of the Succession Law Reform Act and the section 5 entitlement. Section 6(3) covers a partial intestacy, where the choice is between the combined will and intestacy entitlement on one side and equalization on the other.
Equalization is a calculation, not a share. Under section 5(2), where a spouse dies and the deceased's net family property exceeds the survivor's, the survivor is entitled to one half of the difference. Each spouse's net family property is the value of what they own on the valuation date, less their debts, less the value of what they brought into the marriage, with the matrimonial home treated specially.
Certain property is excluded from net family property under section 4(2), including property other than a matrimonial home acquired by gift or inheritance during the marriage, damages for personal injuries, proceeds of a life insurance policy payable on the death of the life insured, and anything a domestic contract excludes.
A domestic contract can remove the election entirely. A properly executed marriage contract that addresses property rights on death can bar the claim, which is why these agreements matter in second marriages.
The claim is personal to the survivor. An estate trustee cannot commence an equalization claim on behalf of a deceased spouse who never elected.
What Are the Deadlines?
| Step | Provision | Timing |
|---|---|---|
| File the election | Section 6(10), in the prescribed form | Within six months of the death, filed with the Estate Registrar for Ontario |
| Commence the application | Section 7(3)(c) | No application after six months from the first spouse's death |
| Deemed election if nothing filed | Section 6(11) | Deemed to take under the will or the intestacy, unless the court orders otherwise |
| Apply to extend | Section 2(8) | On motion, where the test is met |
Filing the election and starting the application are two separate steps and both fall inside the same six-month window. A survivor who files the election and does nothing else has not preserved the claim.
The six months is not an absolute cutoff. Section 2(8) gives the court a power to extend a time prescribed by the Act, on motion, where it is satisfied that all three of the following are made out: that there are apparent grounds for relief, that relief is unavailable because of delay that has been incurred in good faith, and that no person will suffer substantial prejudice by reason of the delay. Extensions are granted, and Ontario courts have considered them in circumstances that are common rather than exotic: delay in the issue of a certificate of appointment, estate assets that were difficult to identify or value, and the practical reality of a bereaved spouse trying to make a financial decision inside six months.
An extension should be considered in every case where the window has closed, rather than treated as a lost cause. Equally, it should never be relied on in place of filing on time, and it does not restore everything: under section 6(16), where the court extends the time for an application based on section 5(2), property of the deceased spouse distributed before the date of the order and without notice of the application is not brought into the calculation of the deceased spouse's net family property.
Once filed, an election is difficult to undo. The general position is that a filed election is not revocable, although Ontario courts have recognised a residual discretion to permit revocation in restrictive circumstances where the interests of justice require it.
What Does Electing Actually Cost?
The survivor gives up the gift in the will. When a spouse elects for equalization, the gifts to them under the will are forfeited and the will is read as though the surviving spouse had predeceased the deceased, unless the will expressly provides that a gift is in addition to the section 5 entitlement. This is the single point survivors underestimate, and it is why the arithmetic has to be done before the election is filed rather than after.
If the survivor was named as estate trustee, electing creates a conflict that has to be managed. It does not automatically terminate the appointment, but a person cannot comfortably advance a claim against an estate and administer it at the same time. The practical answers are independent legal advice, leaving the administration to a co-trustee, resigning, or seeking directions from the court. Deciding which before the election is filed avoids a dispute about the administration on top of a dispute about the money.
Amounts already received are credited against the equalization payment. Section 6(6) identifies three categories: proceeds of a policy of life insurance as defined in the Insurance Act taken out on the deceased spouse's life and owned by them, or taken out on a group of which they were a member; a lump sum payment provided under a pension or similar plan on the death of the deceased spouse; and property the survivor becomes entitled to by right of survivorship or otherwise on the death. Section 6(7) sets out how they are counted. The amount credited against the section 5 entitlement is the value of the payment or property less any contingent tax liability in respect of it, which matters where the asset carries deferred tax. Two exceptions displace the credit. The first is a written designation by the deceased spouse providing that the survivor takes the payment in addition to the section 5 entitlement. The second applies to survivorship or other property under clause 6(6)(c): where the survivor's entitlement to it was established by or on behalf of a third person, either the deceased spouse or that third person may provide in a will or other written instrument that the survivor takes it in addition. Where the payment exceeds the entitlement and no such written provision exists, the personal representative may recover the excess from the surviving spouse.
This is where the election frequently fails. A survivor who receives a large insurance payout and a jointly owned home by survivorship may find the equalization entitlement fully absorbed, while the gift under the will that they gave up was worth more.
The election ranks ahead of most other claims on the estate, including testamentary gifts, intestacy shares, and dependant support orders, with the exception of support orders in favour of a child of the deceased.
What Does the Estate Trustee Have to Do?
Identify whether there is a surviving married spouse. This is the trigger, and it applies whether or not anyone has mentioned an election.
Do not distribute within six months of the death unless the surviving spouse consents in writing or the court authorises it. Section 6(14) imposes that restriction directly. Section 6(17) is the exception: subsections 6(14) and 6(15) do not prohibit reasonable advances to dependants of the deceased spouse for their support.
Watch for the second restriction. A further bar engages once the surviving spouse has commenced an application and the estate trustee has received notice of it. Filing an election, or giving notice of an intention to file one or to bring an application, does not engage it.
Preserve the records needed for the calculation. Both spouses' asset and debt positions at the date of death and at the date of marriage are needed, and the deceased's side of that record only exists in the estate's files.
Deliver the required financial disclosure if an application is brought. Both the surviving spouse and the personal representative must serve and file a sworn financial statement and a net family property statement.
Reserve for the claim before distributing anything after the six months. An election that succeeds is a debt of the estate.
The personal liability is direct. Section 6 of the Family Law Act allows a person charged with the administration of an estate to be held personally liable where they distribute within the first six months, or after receiving notice of an application under Part I, and the remaining assets are insufficient to satisfy an equalization order. The liability is for the lower of the amount distributed or the amount required to satisfy the equalization payment, and no action may be taken against the recipients of the distributions. In other words, the estate trustee absorbs the shortfall, not the beneficiaries who were paid.
Where This Goes Wrong
Filing the election and stopping. The application has to be commenced inside the same window.
Electing without running the numbers. The gift in the will is forfeited, and the set-offs for insurance, a lump sum under a pension or similar plan, and survivorship property can absorb the entitlement entirely, or exceed it.
Assuming a common-law partner can elect. They cannot. This is the point at which long-term unmarried partners discover the difference the marriage certificate makes.
Treating the six months as absolute. Section 2(8) allows an extension, and a survivor who has missed the date should take advice rather than assume the claim is gone.
Distributing inside the six months. Section 6(14) bars it absent written consent or a court order, and the estate trustee carries the shortfall personally. Reasonable advances to dependants for their support remain permitted under section 6(17).
Assuming a notice of intention stops distributions. It does not. The second restriction requires a commenced application and notice of that application reaching the estate trustee.
Overlooking the matrimonial home. It receives special treatment in the net family property calculation and is often the asset that decides whether equalization beats the will.
The election is a decision with a deadline attached to a calculation that takes time to prepare, which is an uncomfortable combination for a recently bereaved spouse. Starting the arithmetic early is what keeps both options genuinely open. You can book a free call, and our overview of estate disputes in Ontario covers the related claims against an estate.
Frequently Asked Questions
What is the spousal election in Ontario?
It is the choice section 6 of the Family Law Act gives a surviving married spouse: take the entitlement under the deceased's will, or under the intestacy rules if there is no will, or instead claim an equalization of net family property under section 5.
How long do you have to make a spousal election?
The election is filed in the prescribed form with the Estate Registrar for Ontario within six months of the death, and the equalization application must be commenced in the same period. A survivor who files nothing is deemed to have elected to take under the will or the intestacy, unless the court orders otherwise.
Can the six-month deadline be extended?
Yes. Section 2(8) of the Family Law Act gives the court a power to extend time on motion where it is satisfied that there are apparent grounds for relief, that relief is unavailable because of delay incurred in good faith, and that no person will suffer substantial prejudice by reason of the delay. Ontario courts have considered extension motions in ordinary circumstances, including delay in the issue of a certificate of appointment and difficulty valuing estate assets.
Can a common-law partner claim equalization in Ontario?
No. Only a legally married spouse can elect for equalization on death. A common-law partner may have other claims against an estate, including dependant support, but the equalization regime does not apply to them.
Does life insurance reduce an equalization claim?
Generally yes. Section 6(6) of the Family Law Act covers proceeds of a life insurance policy on the deceased spouse's life, a lump sum payment provided under a pension or similar plan on the death, and property passing by right of survivorship or otherwise. Under section 6(7) the amount credited is the value less any contingent tax liability in respect of it. The credit is displaced where the deceased provided in writing that the survivor takes the payment in addition, and, for survivorship or other property whose entitlement was established by or on behalf of a third person, where either the deceased or that third person so provided in a will or other written instrument. An excess over the entitlement can be recovered from the survivor by the personal representative.
Can the executor distribute the estate while an election is possible?
Not within six months of the death, unless the surviving spouse consents in writing or the court authorises it, although section 6(17) permits reasonable advances to dependants of the deceased spouse for their support. A further restriction applies once the surviving spouse has commenced an application and the estate trustee has received notice of it, and an estate trustee who distributes contrary to these rules can be held personally liable for the shortfall.
This article provides general information about Ontario law and is not legal advice. Speak with a lawyer about your specific circumstances.