Under Section 6 of the Ontario Family Law Act, a surviving spouse has a strict limitation period of 6 months from their spouse’s date of death to elect whether to take their inheritance under the Will or claim an equalization of net family property.
Understanding the 6-Month Limitation Period in Ontario
Losing a spouse is a profound tragedy, but the Ontario legal system affords very little time for grieving before major financial decisions must be made. Whether you reside in London, Hamilton, or Sudbury, surviving legally married spouses have special rights under the Family Law Act (FLA). If your deceased spouse left you very little in their Will, you are not forced to accept it. 📣
Section 6 of the FLA allows you to reject the Will and instead claim a 50% equalization of the marital wealth, similar to what you would receive in a divorce. However, this power comes with a brutally strict deadline. You have exactly six months from the date of death to make this “election.” Missing this window means you automatically forfeit your FLA rights and are forced to accept whatever is written in the Will. Hiring a family lawyer from our directory immediately is essential to protect your net worth. ⚖
Step-by-Step Process: Making Your FLA Election
The election process is highly technical and requires immense financial documentation. Here is the standard procedural timeline your law firm will follow to ensure you do not miss the 6-month deadline. 📝
Step 1: Demand Estate Disclosure
Immediately after retaining counsel, your lawyer will formally demand that the estate executor provide a complete accounting of the deceased’s assets and debts on the date of death. You must also compile a detailed list of your own assets and debts to determine your individual Net Family Property (NFP). 📄
Step 2: Calculate the Equalization Payment
Using the disclosure, your legal team will calculate whether you are financially better off taking the inheritance left in the Will, or demanding an equalization payment. If the deceased spouse owned a massive investment portfolio in their sole name while leaving you out, the FLA equalization math usually results in a much larger payout for you. 📊
Step 3: Complete and File Form 1
If you choose equalization, you must formally complete a specific statutory document known as Form 1 (Election). Your lawyer will file this form with the Superior Court of Justice and officially serve it on the estate trustee. This formally halts the distribution of the estate. 📧
Step 4: Requesting an Extension (If Needed)
If the 6-month deadline is approaching and the executor is hiding financial documents, your lawyer must urgently file a motion under Section 2(8) of the FLA. A judge can grant an extension of the limitation period, but only if you prove you acted in good faith and that the delay was unavoidable. Never rely on an extension; they are difficult to win. 🚨
How Much Does This Process Cost?
Evaluating an FLA election requires both family law and estate law expertise, making it a detail-oriented process. As of May 2026, surviving spouses should prepare for the following costs in Ontario. 💵
| Legal Service / Phase | Estimated Cost in CAD |
|---|---|
| Initial NFP Calculation & Review | Typically costs $2,500 to $5,000 CAD to assess the estate and your assets. |
| Drafting and Filing Form 1 | Usually involves standard hourly billing, averaging $1,000 to $2,500 CAD. |
| Litigating the Equalization Claim | If the executor fights the claim in court, a full trial retainer will be $15,000 to $30,000+ CAD. |
How Long Does It Take to Get Paid?
While the deadline to file the election is a lightning-fast 6 months, actually receiving the equalization money is a different story. Once Form 1 is filed, the estate is frozen. If the executor cooperates, settlement can occur within 8 to 12 months. If they contest your NFP calculations, the court process can delay your payout by 1 to 2 years. ⏳
Frequently Asked Questions (FAQ)
What happens if I do nothing for 6 months?
If you fail to file Form 1 within six months of the date of death, Ontario law automatically triggers a presumption that you have elected to take your inheritance under the Will. However, this is not an absolute, permanent bar. Under Section 2(8) of the FLA, and confirmed by Ontario court decisions such as Castiglione v. Akram and Lundy v. Lundy Estate, the court has the authority to extend the limitation period even after it has expired, provided you can prove you acted in good faith, there are clear grounds for relief, and no party will suffer substantial prejudice from the delay.
Does this apply if they died without a Will (intestate)?
Yes. If your spouse died without a Will, you have the same 6-month window to elect between receiving your share under Ontario’s intestacy rules (the preferential share) or claiming an FLA equalization payment.
Can a common-law spouse make a Section 6 election?
No. Under the Ontario Family Law Act, property equalization rights are strictly reserved for legally married spouses. Common-law spouses must rely on trust claims or dependants’ relief claims instead.
Can I take my inheritance AND claim equalization?
Generally, no. You cannot double-dip. You must choose one or the other, unless the deceased’s Will explicitly states that the gifts left to you are in addition to your equalization rights.
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