When death causes the separation of spouses, the Family Law Act (FLA) provides certain rights to the surviving spouse.
Whether an estate passes pursuant to a will, an intestacy or a partial intestacy, a surviving spouse must determine whether he or she could benefit from making an election to receive his or her entitlement following an equalization of net family properties of the deceased and surviving spouse rather than accepting his or her interest in the deceased spouse’s estate.
These situations are highly emotional, and often require careful legal analysis to make an informed decision. Working closely with the firm’s Family Law Group, our Estate, Trust, and Capacity Litigation lawyers will ensure that you are provided with the most comprehensive and beneficial legal advice available.
Equalizing Net Family Property
In the event the surviving spouse wishes to equalize net family property, an election must be made, and all statutory requirements complied with, within six months following the deceased’s death. Although there is a very short limitation period in which a surviving spouse is required to make an election under section 5 of the Family Law Act, a spouse may approach the court to extend the time for making an election. Such extensions are sought where there is insufficient information known to the surviving spouse to allow them to decide whether to make an election within the prescribed time.
Making The Decision
The decision whether to elect to equalize net family property or to accept an interest in an estate as set out in a will or upon intestacy is one that should only be made after:
- Careful analysis of entitlements to be received under a will or pursuant to an intestacy;
- A review of any marriage contract including the circumstances in which the marriage contract was entered into; and
- After careful consideration of the nature of each spouse’s property including, but not limited to, the nature of each spouse’s assets and the manner and the time when the assets were acquired.