2. Think about choosing an equalization payment
If you were legally to the person when they died, but not divorced, you can decide if you want to take what you get from:
- the will or the if they did not have a will, or
- an in family law.
You can only choose one of these options. So, if you choose to take the equalization payment, you then have no right to what you can get under the will or the intestacy rules.
Equalization payment
The equalization payment is based on how much the property you and your partner owned increased in value while you were married.
You have to ask the court for an equalization payment within 6 months of your partner's death.
There are also special rules on how to calculate the equalization payment if your partner left gifts for you in their will. Depending on what the will says:
- you might get these gifts and an equalization payment, or
- the gifts may reduce your equalization payment.
Read “We’re married. What happens to my partner’s property if they die?” to figure out the amount of an equalization payment.
Separated
There are different rules if you're when your married partner dies.
You may have resolved all your family law issues, including the right to choose to take an equalization payment in:
- a separation agreement,
- an arbitration agreement, or
- a court order.
In that situation you may not be able to get an equalization payment.
But you and your partner may have not resolved your family law issues after you separated, including the right to choose an equalization payment. In this situation you might be able to get it.
Deadline
You have to make a claim for an equalization payment before whichever comes first:
- 6 years from the date you separated
- 2 years from the day your is finalized
If the deadline has not passed before your partner died, then you must bring your claim within 6 months of your partner's death. If the deadline passed before your partner died, then you cannot ask for an equalization payment.
Common-law
Common-law partners cannot get an equalization payment.