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Family Law Act Elections

A surviving spouse has an important decision to make. Within six months after the death of a married spouse, the survivor must choose to either take the gifts in the deceased spouse’s Will or to receive an equalization of net family property under the Family Law Act as if the spouses had separated. This is known as a Family Law Act election.

To decide whether to elect, the surviving spouse needs to weigh the two options against each other. Are the gifts and benefits in the Will enough or is the Family Law Act equalization payment more enticing? The decision-making process involves analyzing information that might not be available to the surviving spouse. As the representative of the estate, the estate trustee has the responsibility to gather this information and work with the spouse to resolve the issues.

Family Law Act elections can cause disputes be contentious when the spouse, estate trustee, and beneficiaries do not agree on the what information needs to be shared, what process should be followed, how long it should take, and – most importantly – the existence and the value of the surviving spouse’s claims. Having knowledgeable and experienced counsel is a must for everyone involved in a Family Law Act election.

Whaley Estate Litigation represents surviving spouses, estate trustees, beneficiaries, and others in Family Law Act elections and other claims by surviving spouses.

Resources:

Ontario Legislation: Family Law Act

WEL Paper: Family Law Act Election on the Death of a Spouse

This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation.

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