If Your Spouse Dies Before the Divorce Is Final: Estate and Family Claims in BC

Many separated couples in BC never finish the divorce, or are still negotiating when one of them dies. The surviving spouse is often unsure whether they inherit, whether the family law case survives, and what the executor has to do.

In BC the answer usually turns on whether, and when, you separated, rather than on whether a divorce order was ever made. This article walks through the estate rules and the family law rules that apply, and why they need to be looked at together.

Separation, not divorce, is usually the turning point

BC's Wills, Estates and Succession Act (WESA) decides who counts as a spouse when someone dies. Under section 2, two people are spouses if they were married to each other, or lived together in a marriage-like relationship for at least 2 years. Section 2(2) then says when they stop being spouses for estate purposes:

• Married couples: they cease to be spouses when an event occurs that causes an interest in family property, as defined in Part 5 of the Family Law Act, to arise.
• Unmarried couples: they cease to be spouses when one or both of them end the relationship.

For married couples, section 81 of the Family Law Act says that on separation each spouse has a right to an undivided half interest in all family property as a tenant in common. Read together, these sections mean that separation is generally the point at which married spouses stop being spouses under WESA. A divorce order is not needed for that.

There is one exception. Under WESA section 2(2.1), spouses are not treated as separated if, within one year after separating, they began living together again with the main purpose of reconciling and lived together for one or more periods totalling at least 90 days. When a couple separated, and whether they reconciled, are often the first facts in dispute. Our article on dates of separation explains how those facts are proved.

What a separated spouse loses under the estate rules

If you had separated within the meaning of WESA before your spouse died, you are not their spouse for estate purposes. That has three main effects.

• No spousal share on an intestacy. If there is no will, the spousal share described in our article on who inherits when there is no will goes to a spouse under WESA, which a separated spouse no longer is.
• Gifts and appointments in the will are revoked. Under WESA section 56, if the will gave a gift to the spouse, named the spouse as executor or trustee, or gave them a power of appointment, and the two later ceased to be spouses under section 2(2), those provisions are revoked and the gift is distributed as if the spouse had died first. This is subject to a contrary intention in the will, and a later reconciliation does not undo it.
• No wills variation claim as a spouse. Section 60 lets a spouse or child ask the court to vary a will that does not make adequate provision for them. A person who is no longer a spouse under WESA cannot bring that claim as a spouse. Where a claim is available, section 61 requires it to be started within 180 days of the representation grant being issued in BC.

If you were still spouses when the death happened, because you had not separated or had reconciled, these rules work the other way. The surviving spouse may inherit under the will or on an intestacy and may be able to bring a wills variation claim.

Family law claims when a spouse dies mid-case

The family law side raises separate questions. Part 5 of the Family Law Act, which deals with property division, does not set out a specific rule for what happens to a property claim when one spouse dies. Whether a claim to divide family property can be started or continued by or against an estate, and how it interacts with the estate rules above, is a technical question that depends on the facts and the stage the case had reached. It should be reviewed by a lawyer as soon as possible after the death.

Time limits also matter. Under section 198 of the Family Law Act, married spouses generally have 2 years after a divorce order to start a claim to divide property or for spousal support, and unmarried spouses have 2 years after the date they separated. A death before any divorce changes how those deadlines work in practice, which is another reason to get advice quickly.

Support that continues after death

Spousal and child support can, in some cases, survive the payor's death. Section 170(g) of the Family Law Act lets the court order that a duty to pay support continues after death and is a debt of the estate for a period it fixes. Before doing that, section 171 requires the court to consider whether the recipient has a significant need likely to continue after the death, whether the estate is sufficient after creditors and beneficiaries, and whether there is no other practical way to meet the need.

If an agreement or order already exists and it is silent on whether support continues after death, section 171(3) allows the recipient to apply for an order that it does. The personal representative can also apply to change or end a support obligation after the payor dies.

Other assets to check right away

• Beneficiary designations. Life insurance, RRSPs, RRIFs and pension plans pass under their own designations. A separated spouse may still be named. See our article on updating your will and beneficiaries after separation.
• Jointly held property. How a home or account held in both names is treated after a death during separation is a question to raise with your lawyer early, before anything is transferred.
• The executor's position. An executor who knows of a separation, a family case or a support order should get advice before distributing anything.

Separated when your spouse died? Have both sides reviewed together

Our family lawyers can review the separation, the will and any family case or support order, and work with our probate colleagues so the estate and family claims are assessed together.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.