My Ex Died After We Separated. What Happens to All the Assets & Debts?

In British Columbia, sometimes resolving family law matters can take years. Other times, two people may separate and take no steps to divide their assets. During that time, one spouse may die. What will happen to assets and debts if this happens?

Our family and estate litigation lawyers are intricately aware of the interplay between family law and estates, and explain important information you should know about these scenarios below.

If My Ex Spouse Passes Away and We are not Divorced, Do I Get All the Assets?

If your ex passes away following separation but before divorce or final division of the family assets, you do not automatically obtain all the assets nor do you lose all. You will most likely be entitled to 50% of all assets and are responsible for half of the marital debts.

Section 81(b) of the Family Law Act states on separation each spouse has a right to an undivided half interest in all family property as a tenant in common and is equally responsible for family debt.

Family property is divided by agreement or court order. Even if years and years have passed since the spouses’ separated, if no court order has been made or no agreement reached, the family property simply remains undivided and each spouse retains their right to an undivided half interest in all the family property as a tenant in common, including the increase in value.

What if I am Named as a Beneficiary in the Will of my Deceased Spouse?

It depends on the date of the will. If the will was written while you were together and prior to separation, then that will likely won’t have any effect and will be cancelled. If a will was made after separation by your spouse and still named you as a beneficiary, then that will is likely valid and you will receive what your ex-spouse has left you in the will. This is pursuant to s. 2(2)(a) of the Wills Estates, and Succession Act.

My ex-husband passed away and all family assets were in their name. How do I get my share?

Despite one of the (ex) spouses passing away before starting court proceedings, the surviving spouse is still able to pursue their share of the family property through s. 150(5) of the Wills, Estates and Succession Act,. This section states that you can bring any action against the estate of the deceased person that you could have brought against the living person.

Likewise, even if you die, your estate (through your executor) can still sue your surviving ex-spouse for division of family property, as set out in s. 150(2) of the Wills, Estates and Succession Act.

What if My Spouse Dies During our Family Law Case?

The Supreme Court Family Rules also state in defined circumstances, a family law case may continue notwithstanding the death of a spouse and further, a family law case may be started by a litigation representative.

What if I Die Before Obtaining My Half Share of our Family Assets?

The representative of your estate may commence a family law action against your spouse for half of the assets and debts. However, your representative cannot commence an action for spousal or child support unless your already agreed to same through a separation agreement.

In Weaver v. Weaver Estate, a 2022 decision of the BC Court of Appeal:

• the parties were married in 1993 and separated in 2005
• fifteen years later, Ms. Weaver passed away
• no divorce order had been pronounced, no family law agreements had been made, and there were no court orders or outstanding proceedings between Mr. and Ms. Weaver
• prior to Ms. Weaver’s passing, she had consulted with legal counsel with respect to divorcing and dividing family property however no court action was commenced
• following Ms. Weaver’s passing, the administrator of her estate commenced a family law proceeding by filing a Notice of Family Claim seeking division of the family property and family debt
• the family property included real property in British Columbia, Washington State and Hawaii that was held jointly by the parties

The BC Court of Appeal confirmed the administrator of the estate of a separated and deceased spouse may commence a claim for the division of family property and family debt against the surviving spouse. It was not necessary for a family law action to have been commenced prior to a separated spouse’s passing because the section 81 right to an undivided half interest in all family property as a tenant in common crystallizes upon separation.

How long do I have to commence my claim for family property after my spouse passes?

The Family Law Act provides a 2-year limitation period from either the date of separation for common law couples, or 2 years from the date of the order granting the divorce for married couples. However, there are exceptions and this time limit may be extended.

In the case above Mr. Weaver argued that permitting Ms. Weaver’s estate’s claim for division of family property and debt, would result in the estate of a deceased spouse not being subject to the general 2-year limitation period. The BC Court of Appeal in Weaver did not have the benefit of fully considering submissions on this issue, however the Court stated that the modern principle of statutory principle may support an interpretation that the administrator of an estate would have two years from the date the ex passed away to commence a claim for division of family property and debt.

To find out more about disputing unfair wills or sibling disputes, click here. 

At YLaw our lawyers focus on family law and estate litigation, and are aware of the intricacy of how these two areas play together. Give us a call at 604-974-9529 or get in touch for a consultation re the best strategy for your case. 

Raman Dahia is a family and estate litigation lawyer at YLaw and the author of this post.