A Few Practical Rules about Ontario Family Law Elections for Married Spouses

What are the family law election rights?

I’ll explain that in a moment. Here are some practical rules to help you if your married spouse has died.

Rule 1

Only married spouses have Ontario family law elections.

Common law spouses do not have such inheritance rights. Common law spouses do not have statutory rights to inherit property from their common law spouses. They may have other property rights under wills, joint ownership or as designated beneficiaries. Otherwise, they must start legal proceedings against their partners’ estates.

After years together, it may feel like you were married. But Ontario law discriminates against people who are not married. Ontario family law gives statutory inheritance rights only to married spouses.

This is an omission that the government should correct to update its estate laws. Common law spouses need economic protections without having to go to court.

Rule 2

The family law election allows only the surviving spouse to elect. The deceased spouse does not have statutory rights to elect.

The Family Law Act of Ontario provides what happens when a married spouse dies. There are two principal categories

  1. If there is a will.
  2. If there is no will.

If There is a Will

If you are the surviving spouse, you may elect to accept provisions in your spouse’s will. Or you can elect to receive one-half the difference between your net family properties.

That’s a mouthful.

Let me explain how this works with a simple example.

Suppose you deceased spouse dies with $800,000 of net family property.

If you are the surviving spouse and have $300,000 in net property, then your net property difference is $500,000.

If the election is made, you as surviving spouse could receive one-half of the difference in net family property, or $250,000.

There are complex rules for what extras are to be deducted or added. So the calculation is not that simple.

Your deceased spouse could have left you $100,000 under their will. If you are the survivor, you could elect to take the $100,000 in the will or the amount under the election. You get to choose. But what if there is no will?

If There is No Will

The surviving married spouse can elect to accept property under the intestacy rules or make an election under the Family Law Act.

Election rights are always subject to any prenuptial or domestic agreement between the parties. It is not uncommon that these contracts are out of date, or fail to meet tests for validity. Again there are complex rules for what extra are deducted or added.

Rule 3

The election (and your court application, see Rule 4) must be filed in court within six months of a spouse’s death. This is often difficult to do. Estate trustees for your deceased spouse need to provide financial disclosure.

It can take several weeks for estate trustees to retain the right lawyer. Then they need to provide necessary financial disclosure.

Lawyers not familiar with the election mistakenly refer estate trustees to family law lawyers. This can make things take longer.

Rule 4

Proceedings must be commenced against your spouse’s estate within six months. You cannot sue a dead spouse. You can only sue their estate trustees. Therefore, legal proceedings are estate matters. They do not belong in family court. Estate trustees need estate litigation lawyers, not family law lawyers.

Rule 5

Although there is a six-month period to file an election and commence legal proceedings, this time can be extended by judges. Getting an extension of time is a discretionary remedy. Judges may or may not give you extensions.

It is best to get legal advice from an estate lawyer. You should seek this advice early on. Then you can obtain an extension of time, and any other relief before the six-month limitation period expires.

Your Take Away

I have been handling family law elections in estate cases for decades. I would be happy to help you with your family law election issues.

Contact my office.