Written by: Naa Lansana
Ontario law distinguishes between the rights of a surviving legally married spouse and those of a surviving common-law spouse, providing more extensive protections for legally married spouses.
Upon the death of a spouse, a legally married survivor has two primary avenues to pursue, namely a Right of Election under the Family Law Act (FLA) or inheriting under the deceased’s will. If no will exists, the survivor inherits under the intestacy regime of the Succession Law Reform Act (SLRA).
In election under the FLA, the surviving spouse chooses between accepting the gifts left to them in the will or seeking an equalization of net family property. Equalization is a framework where economic gains accumulated during the marriage are shared. This is calculated based on assets and liabilities as of the day before the deceased’s passing. To make an informed decision, the survivor should have a clear understanding of both parties’ financial states. The election must be made within six months of the death; otherwise, the spouse is deemed to have chosen to take under the will or the intestacy rules.
Regardless of the election made, a surviving spouse may also apply for a dependant support claim under the SLRA if they qualify.
Where the deceased spouse left no will, the surviving spouse can elect to take a preferential share and residue where applicable, under the SLRA. The preferential share presently consists of the first $350,000.00 of the deceased spouse’s estate. The distribution of the remaining residue depends on the number of children. If there is no child, the spouse receives the entire estate. If there is one child, the spouse receives the preferential share plus half of the residue. Where there is more than one child, the spouse receives the preferential share plus one-third of the residue.
Common-law spouses on the other hand, do not have a right of election and do not automatically inherit under the SLRA intestacy rules. However, they may bring a dependant support claim if they were financially dependent on the deceased, or pursue other avenues such as trust claims.
It is worth noting that if the spouses signed a domestic contract, the terms of that agreement may take precedence over the statutory mechanisms outlined above.
