Do I Get Spousal Support Even if He is Dead?

Turmoil rolls one after another in family law, but what makes things worse is when your ex-spouse who pays your spousal support every month is dying or dead. In the event of death, is the estate of your ex-spouse still obligated to pay you spouse support? This is a tricky and complicated question. Let’s look at what you can do to secure spousal support upon death:

Secure Spousal Support Before Death

You will always thank your BC family lawyer for thinking about this scenario and securing your rights before your spouse’s death. The easiest ways to ensure you get spousal support upon your spouse’s death are as follows:

1. Get a separation agreement that states your spouse will pay you spousal or child support upon his death through his/her estate; or
2. Get a court order that will compel him/her to pay spousal or child support even in the event of death.

Getting a Court Order before your spouse dies is much harder than getting an agreement. Basically, you are asking the court to speculate whether your spouse

1. will die soon
2. you need his/her support after death and
3. he/she has sufficient estate to pay your spousal support!

The BC Family Law Act states:

(3) If a person having a duty to pay child support or spousal support under an agreement or order dies and the agreement or order is silent respecting whether the duty continues after the death of the person and is a debt of his or her estate, (a) the person receiving support may make an application under section 149 [orders respecting child support] or 165 [orders respecting spousal support], and (b) if, on consideration of the factors set out in subsection (1) of this section, an order is made, the duty to pay child support or spousal support continues despite the death of the person and is a debt of his or her estate for the period fixed by the court.

Obviously, there are huge problems with asking the judge to make such a determination. One of my favourite judges, Justice Weatherill in Joffres v Joffres, 2014 BCSC 1778, said:

“……the section requires the court to embark on an enquiry into the potential claims against the payor’s future estate as well as into the future estate’s ability to pay. How is the court expected to know, when making an order for spousal support, whether the payor’s unknown future estate “is sufficient”? Can significant need, estate sufficiency and potential other practical means to meet the need be assessed when the death of the payor may not occur for years or even decades? How is the court to know what the claims against the future estate will be? Is notice to be given to all prospective creditors and beneficiaries? Even worse, is the payor thereafter precluded from changing his or her will to add or remove beneficiaries? In effect, s. 171(1)(b) requires the court to launch upon an anticipatory wills variation action.”

Overall, the courts are uneasy about ordering the obligation to continue spousal support on the payor’s estate in anticipation of the payor’s death. Not surprisingly, in that case, Mr. Justice Weatherill declined to make an order under s.170(g) of the Family Law Act to order spousal support after the death.

Secure Spousal Support After Death

If your spouse dies, you are faced with one of two scenarios:

1. You already have a separation agreement or a court order that says he/she must still continue paying you child support or spousal support; or
2. You do not have a separation agreement or court order allowing you to collect child or spousal support after death.

In the first scenario, the representative of your spouse’s estate can go to court and ask for an Order that the estate discontinues paying your spousal or child support. If the estate does not have much money or there are secured creditors, the Application may be successful, and you may have no more support pay. In the second scenario, you will have to apply to the court for an Order that your spouse’s estate continues to pay child support or spousal support. This is a tough application, and you have to prove various factors to succeed. Child Support and Spousal Support After Death are very complicated matters and can be worth tens if not hundreds of thousands of dollars. 

Contact our BC Family Lawyers for an INITIAL CONSULTATION at 604-974-9529 or contact us regarding all issues on spousal or child support.