FLA Spousal Elections & the Impact of Iasenza v. Iasenza Estate

As is widely known, the Family Law Act[1] (“FLA”) allows a surviving spouse to elect to either receive benefit under the deceased’s will (or on an intestacy if there is no will), or receive an equalization of net family property under the FLA.  Normally, the surviving spouse seeks information regarding each of the options and then elects for the greater benefit.  An application for an equalization payment must be brought within six months of the first spouse’s death, otherwise the surviving spouse is deemed to have chosen to take under the will.

Two relatively recent cases consider FLA spousal elections and deserve some scrutiny: Iasenza v. Iasenza Estate[2] and Webster v. Webster Estate[3].  Both cases are discussed below.  However, given the time constraints that apply to speakers at the 2008 Law Society of Upper Canada’s Six-Minute Estate Lawyer, my oral presentation focused on Iasenza v. Iasenza Estate alone.