- Allison Hines
Wills and the Family Law Act
When a spouse dies and has left a will, the spouse who survives them is entitled to make an election to receive either an equalization payment or his/her entitlement under the will.
When a spouse dies and has not left a will, the spouse who survives them is entitled to make an election to receive either an equalization payment or his/her entitlement as a spouse under the Succession Law Reform Act.
An election can be defined as a legal decision or choice. If an election is not made by the surviving spouse within 6 months of the death of their spouse, the choice of equalization will be eliminated and they will be granted their entitlement under the will or under the Succession Law Reform Act.
It is recommended that a surviving spouse seek legal advice prior to making an election as their decision can have significant consequences on what they are entitled to receive. The surviving spouse should gather as much information as possible pertaining to the assets of both spouses. The reason that legal advice is recommended is so you can make an election to your financial advantage. For example, if your spouse left most of their property to other members of their family and not to you, then an equalization payment may be in your best interests. The rules pertaining to common-law spouses differ. Instead, common-law spouses do not inherit any of their spouse’s property unless it was specifically left to them in a valid will. If your spouse fails to leave a will, the rules of intestacy will give property to the children of your spouse or other relatives who are considered to be next of kin, rather than to you.
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