March 21, 2019

Options After the Death of a Spouse: Equalization

EQUALIZATION AFTER DEATH OF SPOUSE IS AN OPTION

A Spouse has options to ensure that they receive appropriate financial support from the Estate of their deceased Spouse.  When a spouse dies, the surviving spouse does not necessarily have to accept whatever the deceased spouse has left them in their Will, particularly if the amount appears unfair. Spouses have the unique ability to elect for equalization rather than accepting what was left to them in the Will of their deceased spouse. Under s.5 of the Family Law Act, a spouse is entitled to an equalization of net family property if the amount of property owned by the deceased spouse exceeds the property owned by the spouse who is still living.

Using a formula set out by the Family Law Act, the court determines the amount of net family property owned by the deceased spouse and the one still living. If the living spouse’s property is less than the deceased spouse’s, the living spouse is entitled to one half of the difference between them, if they choose to inherit through equalization.

Due to the complexity of the formula to calculate net family property and the consequences of electing for equalization rather than inheriting under the Will of a spouse, it is recommended that the living spouse should contact a lawyer for advice.

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Feel free to contact us at any point for assistance or advice with respect to Estate Law, Estate Planning, Estate Administration or Estate Litigation. We may be reached at 705.435.4339 or contact us via email.