Summary
When a married spouse dies in Ontario, the Family Law Act, R.S.O. 1990, c. F.3, requires the survivor to elect: take under the will or an intestacy, or an equalization entitlement under section 5. If the deceased spouse's net family property exceeds the survivor's, the surviving spouse is entitled to one-half the difference between them (s. 5(2)). The election must be filed with the Estate Registrar for Ontario within six months after the first spouse's death (s. 6(10)). If it is not filed in time, the spouse is deemed to take under the will or the intestacy rules, or both, unless the court orders otherwise (s. 6(11)). Section 7(3) can bar an equalization application. Common-law partners do not have this election.
Who can make this election
Section 1(1) defines "spouse" as either of two persons who are married to each other, or who entered into a void or voidable marriage in good faith on the part of a person relying on that clause. Unmarried partners who lived together are not "spouse" under s. 1(1) and do not have this election. See common-law partners and wills.
Dependant's support under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the SLRA) is a different claim. That Part uses a wider "spouse" definition (FLA s. 29; SLRA s. 57(1)) and allows the court to order adequate provision from the estate for a dependant (ss. 57(1), 58(1)). See dependant's support claims.
The choice: the will or intestacy, or equalization
If the deceased left a will, the surviving spouse shall elect to take under the will or to receive the entitlement under section 5 (s. 6(1)). If the deceased died intestate, the surviving spouse shall elect to receive the entitlement under Part II of the SLRA or to receive the entitlement under section 5 (s. 6(2)). If the deceased died testate as to some property and intestate as to other property, the surviving spouse shall elect to take under the will and to receive the Part II entitlement, or to receive the entitlement under section 5 (s. 6(3)). See challenging a will and the two-year limit on estate claims.
"Net family property" and "valuation date" are defined in s. 4(1). The valuation date is the earliest of the dates listed there, which can be the date before death. A figure below zero is deemed to be zero (s. 4(5)). See inheritance protection. If SLRA s. 43.1 provides that a surviving spouse has no Part II entitlement, s. 6 applies as if that entitlement has a value of $0 (FLA s. 6(21)).
Deadlines and how to apply
The election shall be in Form 1, Election of Surviving Spouse, under R.R.O. 1990, Reg. 368, and shall be filed in the office of the Estate Registrar for Ontario within six months after the first spouse's death (s. 6(10); Reg. 368, s. 1). If it is not filed in time, s. 6(11) deems an election to take under the will or to receive the SLRA entitlement, or both, as the case may be, unless the court, on application, orders otherwise. The court may, on motion, extend a time prescribed by the Act if the conditions in s. 2(8) are met: apparent grounds for relief, relief unavailable because of good-faith delay, and no substantial prejudice from the delay.
No distribution shall be made in the administration of a deceased spouse's estate within six months of the spouse's death unless the surviving spouse gives written consent or the court authorizes the distribution (s. 6(14)). Reasonable support advances to dependants are allowed (s. 6(17)). See estate administration.
A spouse, former spouse or the deceased spouse's personal representative may apply to determine entitlement under section 5 (s. 7(1)). An application based on s. 5(2) may be made by or against a deceased spouse's estate (s. 7(2)(b)). An application based on s. 5(1) or (2) shall not be brought after the earliest of: two years after the day the marriage is terminated by divorce or judgment of nullity; six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; and six months after the first spouse's death (s. 7(3)).
What an equalization election does to gifts and priority
When a surviving spouse elects to receive the entitlement under section 5, the gifts made to him or her in the deceased spouse's will are revoked and the will shall be interpreted as if the surviving spouse had died before the other, unless the will expressly provides that the gifts are in addition to the entitlement under section 5 (s. 6(8), (5)). The spouse is also deemed to have disclaimed the entitlement under Part II of the SLRA (s. 6(9)). Life insurance and lump-sum pension payments on the death, and survivorship property, are generally credited against the s. 5 entitlement (s. 6(6)–(7)).
The s. 5 entitlement has priority over gifts in the will, if any, subject to s. 6(13); over Part II shares; and over Part V orders except an order in favour of a child of the deceased spouse (s. 6(12)). Section 6(13) excepts a will gift made under a contract the deceased spouse entered into in good faith and for valuable consideration, except to the extent its value, in the court's opinion, exceeds the consideration.
Practical takeaways
Only a s. 1(1) "spouse" has this election. Common-law partners do not.
The choice is the will and/or the SLRA Part II entitlement, or equalization under s. 5(2) (ss. 6(1)–(3)).
File the election with the Estate Registrar for Ontario within six months after the first spouse's death (s. 6(10)), or s. 6(11) deems an election unless the court orders otherwise.
An equalization application has a separate limitation period in s. 7(3), which can expire earlier than that filing period.
Electing equalization generally revokes gifts in the will unless the will says they are in addition to the s. 5 entitlement (s. 6(8)).
Frequently asked questions
Who can make a Family Law Act equalization election after a death in Ontario?
A "spouse" as defined in s. 1(1) of the Family Law Act: either of two persons who are married to each other, or who have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on that clause to assert any right. Common-law partners are not within that definition and do not have this election.
Where and when does the surviving spouse file the election?
The election shall be in Form 1, Election of Surviving Spouse (R.R.O. 1990, Reg. 368), and shall be filed in the office of the Estate Registrar for Ontario within six months after the first spouse's death (Family Law Act, s. 6(10); Reg. 368, s. 1).
What happens if the election is not filed in time?
The spouse shall be deemed to have elected to take under the will or to receive the entitlement under the Succession Law Reform Act, or both, as the case may be, unless the court, on application, orders otherwise (s. 6(11)).
Is the time limit to start an equalization application the same as the six-month filing period for the election?
Not necessarily. An application based on s. 5(1) or (2) shall not be brought after the earliest of two years after the day the marriage is terminated by divorce or judgment of nullity, six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation, and six months after the first spouse's death (s. 7(3)).
Talk to us
Francis Mehr LLP handles this election for clients in Ottawa and across Ontario. Book a consultation with the lawyers at Francis Mehr LLP: (613) 226-1011.
General information, not legal advice. This content is about Ontario law as of November 2026. It does not create a lawyer-client relationship. Laws change and every situation is different. Speak with a lawyer about your specific circumstances. Written by the lawyers of Francis Mehr LLP, Ottawa.