Ontario Family Law Act: Rights of Surviving Spouses

In Ontario, a Will usually sets out how an estate is divided, but the Ontario Family Law Act gives surviving spouses additional rights that can override or change what the Will provides. When one spouse dies, the most significant right for the survivor is the spousal election. This allows a surviving spouse to choose between accepting what the Will (or intestacy rules) provides or claiming an equalization payment under the Ontario Family Law Act. Because this decision can dramatically alter what a spouse receives, understanding how it works is essential for those facing the loss of a partner.

Spousal Election in Ontario

In Ontario, marriage is recognized in law as a financial partnership. The Ontario Family Law Act gives a surviving spouse the option to request equalization of family property. Equalization is designed to ensure that the surviving spouse receives a fair share of the growth in family property during the marriage.

For a surviving spouse, this process can sometimes result in more than what the Will provides. In other cases where the Will already makes generous provisions, equalization may not be the better option. Because the election is a one-time decision that cannot be reversed, getting legal advice before deciding is essential.

When a surviving spouse makes an election under the Ontario Family Law Act, it affects more than their own entitlement. The decision also shapes how the estate is managed. Some of the main impacts include:

Delay in Estate Administration: The estate trustee cannot finalize distributions until the election is resolved. This can slow down the timeline for settling the estate.

Possible Sale of Assets: If the estate does not have enough liquid funds to satisfy an equalization payment, the trustee may need to sell property, investments, or even a family business to cover the amount owed.

Added Complexity and Costs: Preparing the equalization calculation requires full financial disclosure and sometimes professional valuations. This can increase the administrative burden on the estate.

Open communication and gathering financial records early can prevent unnecessary delays.

Deadline for Making an Election

Under the Ontario Family Law Act, a surviving spouse has six months from the date of death to make an election. If no election is filed with the court within that time, the law treats the spouse as having accepted what the Will or intestacy rules provide.

Courts can sometimes grant extensions, but these are not automatic and require strong reasons. Missing the deadline usually means losing the ability to claim equalization.

For surviving spouses, the first steps after a death include noting the date of death, keeping all estate-related documents, and arranging an early meeting with a lawyer. This allows time to compare the Will’s provisions with the equalization calculation and decide whether an election makes sense. Acting quickly reduces risk and ensures no options are lost

Estate Planning: Impact of Marriage Contracts and Trusts

Not every estate follows the same path when it comes to a spousal election under the Ontario Family Law Act. Certain legal arrangements can affect how property is treated and may influence what a surviving spouse receives or whether making an election is the best choice.

A marriage contract (often called a “prenup”) is one such arrangement. In Ontario, a valid marriage contract can set out how property will be divided if a marriage ends or a spouse dies. These contracts take precedence over the Ontario Family Law Act. This means a spouse who has waived or restricted equalization rights in a marriage contract cannot later rely on the spousal election to claim more. Because marriage contracts can remove these rights entirely, both spouses should receive independent legal advice and provide full financial disclosure before signing.

Trusts may also affect the outcome of an election. For example, a trust might give a surviving spouse income or the right to use property during their lifetime, while ensuring the assets eventually pass to children or other beneficiaries. In these situations, the value and structure of the trust can influence whether electing equalization is the better option.

It is important that Wills, beneficiary designations, and marriage contracts are reviewed together. Conflicting instructions can create uncertainty, while consistent planning makes it easier to understand what rights exist and how they may be exercised.

 If you are concerned about your rights as a surviving spouse or want to plan your estate with these rules in mind, professional advice is essential. At E is for Estates, we can explain how the Ontario Family Law Act applies to your situation, prepare documents that reflect your intentions, and help protect your family’s future.

This article is intended for informational purposes only. For personalized advice tailored to your specific circumstance, please reach out to the E is for Estates team.

Erin L. Watson, B.A., JD

Lawyer & Notary Public

E is for Estates