The concept of equalization of property after death addresses the rights to an equal distribution of net family property where the surviving spouse considers that the provision in the Will is inadequate or where there is no Will and an intestacy occurs. Subject to the provisions in a domestic contract, in Ontario, the Family Law Act (the FLA) provides for an election to this effect by the surviving spouse. It is important that the surviving spouse obtains professional advice in such circumstances because subject to exceptions which a Court may consider, the FLA requires that an election be made within six months after death.
Whether or not to make the election that is available under the FLA can be a difficult decision for a surviving spouse to make. Often, the circumstances will not be well defined and the decision will not be clear cut. There may also be a tendency at a time of loss to shy away from the considerations the decision presents until it is too late. Surviving spouses or those who are working with them in the early days of the administration of the estate, or in the absence of a Will must act quickly.
An election under the Family Law Act has priority over gifts made under a Will, the right to share in an estate where there is an intestacy and claims for dependant support except where the dependant claimant is a child.
Our lawyers understand these challenges and the sensitivity required. We can help. If an out of court solution is available, we have the experience to find it. If litigation is required, we have the team to provide efficient and cost conscious representation.