The Spousal Inheritance Election in Northwest Territories: A 6-Month Window You Can't Miss

Someone — a lawyer, the court, maybe a clerk — has told you that as the surviving spouse you have six months to file an "election," and you have no idea what that means or what happens if you don't. You're grieving, you're buried in paperwork, and now there's a legal clock running that nobody explained. That clock is real, and missing it can cost you a significant share of what you're entitled to. Here's what the spousal inheritance election in the Northwest Territories actually is, when it matters, and how to file it before the window closes.

What the election is and why it exists

The Northwest Territories Family Law Act gives a surviving spouse certain property rights — protections that recognize a marriage as an economic partnership, not just an emotional one. The idea is that when one spouse dies, the survivor shouldn't be left with less than they would have been entitled to had the relationship ended in life.

The problem is that two other things also determine what a surviving spouse receives: the deceased's will, and, if there's no will, the Intestate Succession Act. Sometimes those produce a fair result for the spouse. Sometimes they don't. A will might leave most of the estate to children from a previous relationship, a charity, or a business partner. The intestacy rules might hand the spouse a fixed share that's smaller than what the Family Law Act partnership claim would yield.

The election is the mechanism that lets the surviving spouse choose. Instead of being locked into whatever the will or the intestacy rules dictate, the spouse can elect to claim their entitlement under the Family Law Act instead. It's a one-time choice between two paths: take what the will (or the Intestate Succession Act) gives you, or claim your property rights as a spouse under family law. You can't have both, and you can't take the better of the two after the fact — you have to choose, in writing, within the deadline.

The 6-month deadline — when the clock starts

This is the part people get wrong, so read it carefully. The clock does not start at the date of death. It starts at the date the grant of probate or letters of administration is issued by the court.

You have six months from that grant to file your election. Probate is the court's confirmation of the will and the executor's authority; letters of administration are the equivalent when there's no will. Whichever applies to the estate, the date that document is granted is day one of your six months.

Why does this matter so much? Because there's often a long gap between a death and a grant of probate. The estate may take months to get to the point of applying for probate at all. So a surviving spouse who assumes "six months from when they died" might think the window has already closed when it hasn't even opened — or, far more dangerously, might assume there's plenty of time and let the real deadline slip past unnoticed. Find out the exact date the grant was issued and count forward from there.

If you're not certain whether probate has been granted yet, or when, that's the first thing to nail down. The NWT Funeral Laws Guide walks through how probate and the post-probate deadlines fit together, so you can see exactly where this election sits in the overall estate timeline.

What happens if you miss the deadline

If the six months pass and you haven't filed an election, the law treats your silence as a decision. You are deemed to have automatically accepted the terms of the will — or, in an intestacy, the distribution set out in the Intestate Succession Act. You waive your alternative claim under the Family Law Act.

There's no "I didn't know" exception built into that outcome. The deadline does its work whether or not anyone explained it to you. If the will or the intestacy rules happen to give you a fair share, missing the deadline costs you nothing. But if they short-change you relative to your Family Law Act entitlement, that gap is gone for good once the window closes. This is exactly why the election deserves attention even in the fog of early grief: it's a use-it-or-lose-it right with a hard stop.

When the election makes financial sense

The election is only worth filing when claiming under the Family Law Act would give you more than the will or the intestacy rules. So the real question is: which path leaves you better off?

Electing under the Family Law Act tends to make sense when the will favours others — the bulk of the estate going to children from a prior marriage, other relatives, or a charity, leaving you a modest share. The same is true of a second marriage governed by an old will that was written before your relationship and never updated, or an intestacy where the Intestate Succession Act's fixed spousal share comes out smaller than your partnership entitlement (common in larger estates where surviving children also take a share).

The election usually isn't worth it when you're already the sole or primary beneficiary under the will, or in a simple intestacy with no children where you inherit the whole estate by default. In those cases the Family Law Act claim won't beat what you already get.

How to calculate whether the will is fair to you

You can't make this choice on a feeling — you need two numbers side by side. The first is what you get under the will or intestacy: total the specific gifts, property, and residue that come to you. The second is what you'd get under the Family Law Act — broadly, your share of the family property accumulated during the relationship, after valuing it and applying the Act's division rules.

The first number is usually easy to read off the will. The second almost always requires a lawyer, because property characterization and valuation are technical and the stakes are high. Given that this is a one-time, irreversible choice with a hard deadline, a focused legal opinion on the two figures is money well spent — the cost of advice is small next to the share you could forfeit by guessing wrong or running out of time.

How to actually file the election

The election is a formal court filing, not a letter to the executor, so it has to be done correctly and on time.

1. Confirm the grant date. Get the date probate or letters of administration were issued. Count six months forward — that's your hard deadline. Mark it everywhere.
2. Get your two numbers. Total your entitlement under the will or intestacy, and get a legal valuation of your Family Law Act claim. Compare them.
3. Prepare the election and its supporting affidavit. The election is supported by sworn evidence, which means an affidavit.
4. Have the affidavit commissioned in person. The NWT Evidence Act strictly prohibits remote or virtual commissioning of affidavits — it must be done in person before an authorized commissioner. In remote communities, RCMP officers, Government Service Officers (GSOs), Notaries Public, and circuit court judges can serve as commissioners for oaths. GSOs can also assist elders in Aboriginal languages, which matters when the person swearing the affidavit isn't comfortable in English. Plan for the in-person step — don't leave it to the last day.
5. File with the court before the deadline. File the election within the six-month window. Late is the same as never.

Because every step here carries a deadline and a formality, this is one area where moving early protects you. Confirm the grant date the moment probate is issued, get your valuation underway, and book the in-person commissioning well before the window closes.

The spousal election is one piece of a larger set of rights and deadlines that fall on a surviving spouse after a death in the Northwest Territories. The NWT Funeral Laws Guide puts the whole sequence in order — probate, the post-probate deadlines, the documentation, and the protections you're entitled to — so you can act on this six-month window with the full picture in front of you instead of finding out about it the hard way.

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