Financial Post | Family Finance
By Adam N. Black, September 16th, 2024
A will that leaves nothing to a surviving spouse does not extinguish that person’s entitlement to equalization
Under Ontario’s Family Law Act (FLA), a married couple shares in the growth of their net worth between the dates of marriage and separation. Called “equalization of net family property,” this right extends to a surviving spouse in the event of the death of their wife or husband. In such circumstances, the FLA gives the surviving spouse the right to choose equalization or to receive their entitlement under the deceased’s will.
Navigating the intersection of rights arising under the FLA and those from a will and estate can be challenging — particularly when there is a significant difference in the amount of entitlement under the two options.
That was the case in a recent dispute before Justice M. Claire Wilkinson of the Ontario Superior Court of Justice: “Family law trumps succession law in case of man who tried to cut children’s mother out of properties”
This case underscores the need for a couple to undertake proper estate and family law planning during their relationship. In many circumstances, a couple may want to consider entering into a marriage contract. Such an agreement creates certainty in respect of the surviving spouse’s entitlement and can contribute to a more orderly administration of the estate.
Adam N. Black, Partner, Family Law Group: Torkin Manes LLP
Unlike a will, which can be changed at any time without the other spouse’s knowledge or consent, a marriage contract requires both parties to agree to any changes. This should afford both spouses certainty and peace of mind.
