What happens to property division if a spouse dies?

When a married spouse dies in Ontario, the survivor chooses between what the will (or the intestacy rules) gives them and an equalization payment under section 5(2) of the Family Law Act. The election must be filed with the Estate Registrar for Ontario within six months of the death. If it is not filed in time, the survivor is treated as taking under the will or intestacy.

How does the surviving spouse's choice work, step by step?

Equalization is usually discussed as something that happens on separation or divorce, as our guide to how property is divided in Ontario describes. The Family Law Act also applies it on death, so a surviving spouse is not limited to whatever the will says. Our property division page sets out the general scheme; this page covers what is different when a spouse dies.

Confirm you are a "spouse". The election belongs to married spouses, including people who entered a void or voidable marriage in good faith (s. 1(1)). Common-law partners have no equalization right.
Find the valuation date. If you were still together, it is the day before the death (s. 4(1), para. 5). If you had already separated with no reasonable prospect of reconciling, the earlier separation date applies because the valuation date is the earliest of the listed dates. Our page on the valuation date explains each one.
Work out both net family properties. The usual rules apply, including deductions for wedding-day property and the exclusions in section 4(2). See our guide to calculating net family property.
Check which way the difference runs. On death, the survivor is entitled to half the difference only if the deceased spouse's net family property was larger (s. 5(2)). The estate has no matching claim against a survivor who had more.
Compare that figure with the will or intestacy. Add up what the will leaves you or, if there is no will, what Part II of the Succession Law Reform Act gives you.
Account for credits. If you choose equalization, life insurance, certain pension lump sums and property you receive by survivorship are credited against it, unless a written instrument says otherwise (s. 6(6) and (7)).
File the election. The election is made in Form 1, "Election of Surviving Spouse", under R.R.O. 1990, Reg. 368, and filed in the office of the Estate Registrar for Ontario within six months after the death (s. 6(10)).
Start a court claim if needed. An application for equalization on death must be brought within six months after the death (s. 7(3)(c)). Our page on equalization deadlines compares this with the separation and divorce limits.

The election form itself is short. The surviving spouse ticks one box, either equalization under section 5 or the will and intestacy entitlement, and signs. The form carries a note that the election has important effects on your rights and that you should get legal advice before signing it.

The two choices side by side

Question	Take under the will or intestacy	Elect equalization
What you receive from the estate	The gifts in the will, or your intestacy share under Part II of the Succession Law Reform Act	Half the difference between the two net family properties, if the deceased's was larger (s. 5(2))
Gifts to you in the will	You keep them	Revoked, unless the will expressly says they are in addition to equalization (s. 6(5) and (8))
Intestacy share	You keep it	Treated as disclaimed (s. 6(9))
Life insurance, pension lump sums, survivorship property	You also receive these (s. 6(4))	Credited against the payment unless a written instrument says otherwise (s. 6(7))
Priority over others	Not applicable: you take as a beneficiary	Ranks ahead of gifts in the will, intestacy shares and most dependant support orders (s. 6(12))
What happens if you do nothing	This is the default after six months (s. 6(11))	Must be filed within six months (s. 6(10))

If there is no will, the intestacy share can be substantial. A spouse with no surviving children or other descendants of the deceased takes the whole intestate estate (Succession Law Reform Act, s. 44). Where there are descendants, the spouse first receives a preferential share, prescribed at $350,000 for deaths on or after March 1, 2021 (O. Reg. 54/95, s. 1), and then half of the rest with one child or one third with two or more (ss. 45 and 46).

Credits, priority and the estate's six-month pause

Three rules shape the numbers once equalization is chosen.

Credits. Payments to the survivor under a life insurance policy on the deceased's life that the deceased owned (or a group policy), a lump sum under a pension or similar plan on the death, and property received by right of survivorship are all credited against the equalization entitlement, less any contingent tax (s. 6(6) and (7)). If the credits exceed the entitlement, the estate can recover the excess. Pensions raise their own valuation questions; our page on dividing pensions explains the family law value.
Priority. The equalization entitlement is paid ahead of the gifts in the will, intestacy shares and orders for dependant support, except support orders in favour of the deceased's child (s. 6(12)). A gift made under a good-faith contract for value is an exception, to the extent of that value (s. 6(13)).
The six-month pause. The estate trustee cannot distribute the estate within six months of the death unless the surviving spouse consents in writing or the court authorizes it (s. 6(14)). Once the trustee has notice of an application, distribution again needs consent or a court order (s. 6(15)). Reasonable advances to dependants for support are allowed (s. 6(17)), and a trustee who distributes in breach can be personally liable (s. 6(19)).

What happens to the matrimonial home

The home is often the largest asset in the calculation. If the spouses owned it as joint tenants, it passes to the survivor by right of survivorship, and if the survivor elects equalization, its value is credited against the payment (s. 6(6)(c)). If the deceased owned the home as a joint tenant with someone other than the surviving spouse, such as a parent, the joint tenancy is treated as severed just before death, so the deceased's share falls into the estate (s. 26(1)).

A surviving spouse who has no ownership interest but is living in the home can stay against the estate, rent free, for 60 days after the death (s. 26(2)). Any registered designation of the home is cancelled when proof of death is registered or deposited (s. 20(6)(d)). For the wider rules, see our page on the matrimonial home. During the marriage, neither spouse could sell or mortgage the home without the other, a rule explained on our page about selling or mortgaging the home without consent.

What changes the answer

Separation before the death. Under rules in force since January 1, 2022, a separated spouse loses gifts in the will and any intestacy share if, before the death, the couple had lived apart for three years due to the breakdown of the marriage, or had a valid separation agreement, a court order or a family arbitration award settling their affairs, and were still living apart at the death (Succession Law Reform Act, ss. 17(3), 17(4) and 43.1). These rules apply only where the qualifying event happened on or after that date, and for the three-year test the couple must have begun living apart on or after it (ss. 17(5) and 43.1(3)). The equalization election remains available, and the intestacy share is then valued at $0 for the comparison (Family Law Act, s. 6(21)).
A case already under way. If an equalization claim under section 5(1) was started before the death, it can be continued by or against the estate (s. 7(2)(a)).
A domestic contract. A marriage contract or separation agreement that deals with property on death generally prevails over the Act (s. 2(10)). Whether it holds up can be tested; see our page on setting aside a marriage contract or separation agreement.
What the will says. If the will expressly says its gifts are in addition to equalization, the survivor keeps them (s. 6(5)). A written designation or instrument can likewise keep insurance or survivorship property outside the credit (s. 6(7), para. 3).
Unconscionability. The court can award more or less than half the difference if equal sharing would be unconscionable, for reasons such as reckless depletion of property, or a payment that is disproportionately large compared with a period of cohabitation under five years (s. 5(6)).
Common-law partners. They cannot elect equalization, but a partner who meets the Part III definition of spouse, and whom the deceased was supporting or was legally obliged to support immediately before death, can apply for dependant support from the estate (Succession Law Reform Act, ss. 57 and 58), generally within six months of the grant of probate or administration (s. 61).

A worked example

For example, imagine a hypothetical couple, Lena and Marco, married and living together when Marco dies. His will leaves Lena $100,000 and the rest of his estate to his children from an earlier marriage. Lena is also the named beneficiary of a $150,000 term life insurance policy that Marco owned on his own life, and no document says it is in addition to equalization. On the day before his death, Marco's net family property was $1,200,000 and Lena's was $200,000. The example ignores tax.

If Lena takes under the will, she receives the $100,000 gift plus the $150,000 insurance (s. 6(4)), for $250,000 in total.
If Lena elects equalization, her entitlement is half of $1,000,000 ($1,200,000 minus $200,000), which is $500,000. The $150,000 insurance is credited against it, so the estate pays her $350,000. With the insurance, she receives $500,000 in total. The $100,000 gift is revoked (s. 6(8)).

Equalization gives Lena $250,000 more, but only if she files the election within six months. If she does nothing, she is deemed to have taken under the will (s. 6(11)).

Common mistakes after a spouse's death

Letting the six months pass. The election deadline and the court deadline both run from the date of death, while the family is grieving and the estate is barely open.
Assuming the will is the only option. Many surviving spouses never compare the will with equalization.
Consenting to an early distribution. Your written consent lets the estate trustee distribute within six months (s. 6(14)(a)), which can leave less to pay your claim.
Forgetting the credits. Insurance, pension lump sums and survivorship property can wipe out much of an equalization payment, so compare like with like.
Assuming a separated spouse still inherits. Since 2022, separation can cancel gifts in the will and the intestacy share.
Estate trustees distributing too soon. A trustee who pays out in breach of section 6(14) or (15) can be personally liable (s. 6(19)).

What to do this week

Write down the date of death and the date six months later, and treat that date as fixed.
Get a copy of the will, if there is one, and note every gift to you.
List insurance policies, pension plans and jointly owned property that pass to you outside the will.
Gather records of both spouses' assets and debts on the valuation date, and on the wedding day.
Ask the estate trustee not to distribute anything, and do not sign a consent to distribution yet.
Get legal advice on whether to file Form 1, "Election of Surviving Spouse", as the form itself recommends. You can reach us through our contact page for a free consultation.

Frequently asked questions

Is filing the election the same as starting a court case?

No. The election is filed with the Estate Registrar for Ontario (s. 6(10)). If the estate disputes the amount, a court application is needed, and it must also be brought within six months after the death (s. 7(3)(c)).

Can the estate claim equalization from me if I had more property?

Not on death alone. Section 5(2) gives the survivor a claim only when the deceased spouse's net family property was larger. A separation claim that was already under way before the death can, though, be continued by or against the estate (s. 7(2)(a)).

What if I missed the six-month deadline?

If no election is filed, you are deemed to take under the will or intestacy unless the court orders otherwise (s. 6(11)). A court can extend time limits in the Act if there are apparent grounds for relief, the delay was in good faith and no one will suffer substantial prejudice (s. 2(8)). In Toronto, the Superior Court's practice direction says an application to extend time for the election should be brought on the Estates List.

Does it matter if part of the estate was already paid out?

Yes. If the court extends the time for a section 5(2) claim, property distributed before the order without notice of the application is left out of the deceased spouse's net family property (s. 6(16)).

Does the house automatically go to me?

Only if you owned it with your spouse as joint tenants, in which case it passes to you by survivorship. If you elect equalization, its value is then credited against your payment unless a written instrument says otherwise (s. 6(6)(c) and (7)).

Can a common-law partner make the election?

No. The election and the section 5(2) entitlement are limited to married spouses. A common-law partner who was being supported can instead consider a dependant support claim under Part V of the Succession Law Reform Act.

What happens to property division if a spouse dies in Ontario?