Think about choosing an equalization payment

If you were legally married to the person when they died, or separated but not divorced, you can make an election. This means you decide whether you want to:

• take what you're entitled to under the will, or the intestacy rules if they didn't have a will, or
• get an equalization payment

The equalization payment is based on how much your and your spouse's property increased in value while you were married. But there are special rules on how to calculate it based on whether your spouse also left property for you in their will. Whether this property reduces your equalization payment depends on how their will was written.

The question "We're married. What happens to my partner's property if they die?" has more information about how to figure out the amount of an equalization payment. To do the calculation, assets are valued on three different dates:

• The date you and your spouse got married.
• The "valuation date": This can be the date you and your spouse separated, or the date your spouse died.
• The date the application is made.

Only married spouses can choose to get an equalization payment when their spouse dies. This also applies to married spouses who have separated but are not yet divorced. Common-law partners and divorced ex-spouses can't get an equalization payment.

Deadlines

You have to ask the court for an equalization payment within 6 months of your spouse's death.

Get legal help

Figuring out the amount of your equalization payment and comparing it to what you would get under the will or on an intestacy can be complicated. It's important to talk to a lawyer soon after your spouse dies to figure out which option is best for you.