Executor Secrets – What are a Spouse’s Rights to an Estate?


Are you an executor or an estate trustee in Ontario? This post will help you understand the complex issues affecting spouses in Ontario estates. It will also help you understand your rights as a spouse.

There are different kinds of spouses. Each category of spouse has different rights and obligations. A spouse can be:

1.    married
2.    married in a second or subsequent marriage
3.    common-law
4.    separated or divorced

Some of these rights require explanation.

1. Married Spouses Have Family Law Election Rights

Ontario married spouses have specific rights to inherit and share in property. They also have a right to support. There is a deadline for filing an election under the Family Law Act.

A marriage contract can specify what happens when a married spouse dies. If there is no contract, the survivor may elect to claim against the deceased spouse’s estate.

This married spouse’s claim entitles the survivor to elect. The survivor may elect to receive one of the following:

a) what they would have received if they filed for divorce prior to the spouse’s death; or
b) what they are entitled to receive if the deceased died without will.
c) what gifts the surviving spouse is to receive under the will.

Deadline for Family Law Election

There is a deadline for filing an election under the Family Law Act. It is six months from the spouse’s date of death.

This election requires calculation and financial disclosure. Usually lawyers must advise the executor and spouse to hire separate lawyers.

The calculations and steps involved are complex. Usually this six-month limitation period must be extended. Everyone needs to prepare financial statements. These can be exchanged and the calculations made to determine the best option.

What if you are a married spouse and wish to file an election? You should not apply to be estate trustee under the will. This would place you in a conflict. Plus, you cannot sue yourself.

When a Married Spouse Dies

In Ontario, when a married spouse dies without a will, Ontario rules divide their estate. The surviving married spouse receives the first $200,000 of the estate. They share the remainder with the deceased’s children.

This amount could be more or less than what is left to the survivor under a valid will.
These intestate rules only apply to married spouses. Common law spouses do not automatically inherit in Ontario.

To find out what happens when you die without a will, read my post Dying Without a Will in Ontario.

2. Common Law Spouses

In Ontario, common-law spouses do not automatically inherit when their partner dies. I have written about this in my post Are You an Ontario Surviving Common Law Spouse Who Needs Support?

You and your common-law spouse may live together for the last 23 years in a house you both had paid for. You feel married and your friends and family treat you as married. However, Ontario law does not. Read more on this topic in my posts New Estate Rights for Common Law Spouses and New Estate Remedies for Ontario Common Law Spouses: Joint Family Ventures.

Ontario law defines a common-law spouse differently than for income tax purposes. In Ontario, a common-law spouse can make a claim for support after three years and can be considered a dependent for support. They may need to sue their partner’s estate for a share of the property.

3. Second Marriages and Spousal Trusts

These spousal trusts are sometimes established for spouses in a second marriage. These trusts may allow a spouse to receive income from trust managed by the estate trustee or executor.

Subsequent spouses could be a second or subsequent married person. Their rights could be affected by a prenuptial or cohabitation/domestic contract or a spousal trust.

A marriage will revoke a prior will unless the will contemplates marriage or divorce.

4. Separated or Divorced Spouses

The law is not clear on married spouses who are not living together. Usually, divorced spouses rights are restricted by a divorce decree.

Any separation agreement that ends the marriage usually already divides property. There may be potential claims against the estate for support.
Such agreements need to be reviewed to confirm they are valid.

A divorce cancels any gift or appointment as estate trustee in a will.

Contact Us for a Consultation on Spousal Rights

If you are spouse and not sure of your rights, contact me for a consultation.
If you are an executor dealing with spouses, spousal trusts, separation agreements and conflicts of interest, contact me for a consultation.

About Edward Olkovich

I am a Toronto estate lawyer and Certified Specialist in Estates and Trusts Law. I edit Carswell’s legal guide Compensation and Duties of Estate Trustees, Guardians and Attorneys. I have handled estate disputes and probate problems since 1978. © 2015