Family Law Act Elections

A surviving spouse has an important and timely decision to make on the death of a married spouse, such that the surviving spouse must elect to either:

1. take the gifts in the deceased spouse’s Will or, if applicable, the entitlement on an intestacy or partial intestacy; or,
2. receive an equalization of net family property under the Family Law Act.¹

Notably, in order to file an election and commence an application under section 5 and section 6 of the FLA, the surviving spouse will need to know the value of the deceased spouse’s estate and have a valuation of their own assets to evaluate whether an election is lucrative or appropriate. The calculation of the quantum of an FLA election requires consultation with a family law lawyer.

The equalization payment made pursuant to the FLA is one‑half of the difference in the value of net family properties of the deceased spouse and the surviving spouse.  The valuation date for purposes of calculating net family property is the day before death. The specific provision is set out in section 5(2) of the FLA, which states that:

Death of spouse

(2) When a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them.² 

An FLA election and corresponding application is made by way of filing an election and Notice of Application. Once the election and application are made to receive entitlement under the FLA, the gifts to the spouse in the deceased’s spouse’s Will are revoked and the Will is interpreted as if the surviving spouse had died before the other. The election and corresponding application strictly must take place within 6 months of the spouse’s death unless the court grants an extension of that time.³

Only a surviving spouse can elect to receive an equalization of net family property. It is a personal claim. “Spouse” is defined in the FLA as either of two persons who are married to each other or have together entered a marriage that is voidable or void, in good faith on the part of the surviving spouse.⁴ A guardian of property, or attorney for property of a surviving spouse can elect on behalf of the surviving spouse.⁵

The surviving spouse must begin an application for equalization and serve notice on the estate trustee to engage the protections under section 6(15) of the FLA that restrict distributions from the estate. Neither filing an election, giving notice of an intention to file an election, nor giving notice of an intention to commence an application are sufficient notice for the purpose of section 6(15).⁶

If an application is made for an equalization payment, then the surviving spouse and the personal representative of the deceased spouse must each deliver a sworn financial statement in Form 13.1 and a Net Family Property Statement disclosing:

1. the party’s property and debts and other liabilities,
1. as of the date of the marriage,
2. as of the valuation date, and,
3. as of the date of the statement;
2. the deductions that the party claims under the definition of “net family property”;
3. the exclusions that the party claims under subsection 4(2) of the FLA; and
4. all property that the party disposed of during the two years immediately preceding the making of the statement, or during the marriage, whichever period is shorter.⁷

The equalization payment between a surviving spouse and the deceased spouse is calculated in the same manner as for separated spouses under the FLA. Generally, an equalization payment is one-half of the difference between the net family properties of the spouses. The spouse with the higher net family property pays the equalization payment to the spouse with the lower net family property.⁸

A spouse's net family property is the value of all of that spouse's property on the valuation date after deducting the spouse's liabilities on the valuation date and the value of property that the spouse owned on the date of marriage, other than a matrimonial home, and after excluding the value of excluded property, which includes certain property received during the marriage including a gift from a third-party other than a matrimonial home, an inheritance and life insurance proceeds.⁹

The valuation date, for the purposes of an election, is the earliest of:

1. the date before the date of death of the first spouse;
2. the date the spouses separated; or,
3. the date the spouses divorced, or the marriage was declared a nullity.¹⁰

Importantly, a spouse’s entitlement to an equalization payment under section 5 has priority over an order made against the estate for dependant’s support under Part V of the Succession Law Reform Act (“SLRA”)¹¹, except as it relates to an order in favor of a child of the deceased’s spouse.¹² Notably, a surviving spouse may make both an election under the FLA, and, may simultaneously commence a dependant’s support claim under the SLRA.

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1. Family Law Act, RSO 1990, c. F.3 (“FLA”).

2. FLA at section 5(2).

3. FLA at section 6(10).

4. FLA at section 1(1).

5. Substitute Decisions Act, 1992, SO 1992, c30 at section 31(1); Yamada v. Zolad, 2007 CanLII 4328 (ONSC).

6. Paola v. Paola Estate, 1997 CanLII 24454 (ON SC) at paras 40 to 42.

7. FLA at s. 8; Family Law Rules, O. Reg. 114/99, at Rule 13.

8. FLA at section 5(1).

9. FLA at sections 4(1) and (2)).

10. FLA at section 4(1).

11. Succession Law Reform Act, RSO 1990, c. S.26 (“SLRA”).

12. FLA at section 6(12).

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Resources:

Ontario Legislation: Family Law Act

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

WEL Blog: Family Law Act Election Delay Must be Incurred in Good Faith

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 Partners.