Your married spouse has the right, on your death to elect:
- To receive from your estate in accordance with your will (for instance, if your will gives everything to your spouse), or
- Under the Family Law Act, to receive from your estate as if you had been divorced immediately prior to your death.
In other words, if you give less in your will to your spouse than they would be entitled to in a divorce, then it is likely that they will in effect ‘challenge the will’ and make the election that permits them to receive as if you were divorced the day before your death.
Note: a common law spouse does not have this right in Ontario.
Rights of former spouses
If you owe a duty to support a former spouse, then this duty likely forms a debt due by the estate. For instance, if you have a separation agreement or Court order (or both) that imposes a support payment or division of assets.
If you owe such an obligation to your ex-spouse, it must be paid before there is any estate available for distribution to beneficiaries (for instance, your new spouse or children). The precise nature of your debts and the consequences for your estate will depend on the terms of any agreement with your former spouse or Court order. For instance, determining the value of an on-going support payment for children can be very complex.
Rights of financial dependents
Anyone who you either was financially dependent on you prior to your death or you had a legal obligation to support before your death, has a right to claim “dependent’s support”.
These claims trump your will, and in fact apply to a wide range of assets such as life insurance and RRIFs/RRSPs that might not form part of your ‘estate’.
The people who can make such a claim include:
- married and common law spouses
- former spouses
- anyone who was financially dependent on you prior to your death.