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Our top rated Death of Spouse Family Estate lawyers and Vancouver family property division and estate litigation lawyers explain that the death of a spouse after separation and prior to commencement or resolution in a family proceeding does not mean the claim for family or estate litigation relief ends. If a separated spouse dies before proceedings have been commenced, a claim can still be brought forward or continued by way of s. 198 of the The Family Law Act (“FLA”) or s. 150 of Wills Estates and Succession Act (“WESA”). For a great article on unequal family property division involving a death of a spouse read this.

Death of Spouse Family Estate Lawyers 1-877-602-9900

Today, Fraser MacLean, articled student at MacLean Law’s Death of Spouse Family Estate Lawyers team explains that through the mutual interaction of the Family Law Act and the WESA, when a spouse dies after separation, an action can be commenced either by the surviving spouse against the estate of the deceased or by the estate of the deceased against the surviving spouse because:

  1. Each spouse’s right to an undivided one-half interest in the family property arises on separation, but there is no requirement that both spouses be alive post-separation for a claim to proceed (Howland Estate v. Sikora, 2015 BCSC 2248).
  2. Section 198 does not specify that the proceeding be commenced against the other spouse. Accordingly, an action can be commenced against an estate . Importantly, “Spouse” under the Family Law Act includes a former spouse for all purposes ( including a deceased spouse!).
  3. Section 150 of the WESA allows the personal representative of a deceased to commence or continue a proceeding the deceased person could have commenced or continued, with the same rights and remedies to which the deceased person would have been entitled, if living.

Given that a separated spouse no longer has estate succession rights in relation to the other spouse, due to the definition of “spouse” in section 1 of the WESA  an inability to commence an action against the estate of a deceased spouse could be unfair, particularly when the deceased dies before a Family Law Act proceeding is commenced and is the one who holds the majority of the family property.

Death of Spouse Family Estate Lawyers
Death of Spouse Family Estate Lawyers, articled student Fraser MacLean

What Happens If A Spouse Dies After A Family Proceeding Has Already Been Commenced?

A family claim that has already been commenced by a spouse clearly can be continued after the spouse dies. Rules 8-2(1) and 8-2(2) of the Supreme Court Family Rules which provide:

Party ceasing to exist

(1)If a party dies or becomes bankrupt, or a corporate party is wound up or otherwise ceases to exist, but the claim survives, the family law case may continue in spite of the death or bankruptcy or the corporate party having been wound up or ceasing to exist.

Effect of death

(2)Whether or not the claim survives, a family law case may continue in spite of either party dying between the verdict or finding on the issues of fact and the entry of judgment, but judgment may be entered despite the death.

Death of Spouse Family Estate Lawyers After Death Claims Allowed

Claims can also be brought forward and continued against the deceased estate. In the case Howland Estate v. Sikora, the court found that the death of the claimant, prior to the FLA coming into force, did not nullify the respondent’s ability to commence an action against the claimant’s estate so long as it occurred within the two-year period considered in s. 198 of the FLA. The court in Howland stated the following:

[30]        Such, in my view, applies here. The death of the claimant, prior to the coming into force of the FLA, does not override the respondent’s right to commence an action against the claimant’s estate so long as it occurs within the two year period contemplated in s. 198, as happened here.

[31]        In the result the claimant’s application is dismissed with costs to the respondent in the cause.

Death of Spouse Family Estate Lawyers Can Help

Death of Spouse Family Estate Lawyers
MacLean Law’s Waterfront Vancouver office 1-877-602-9900

If a spouse dies after separation that does not mean a BC family property claim ends or cannot be brought forward. Contact one of our experienced Death of Spouse Family Estate litigation lawyers to learn more about your options today.

Call our Death of Spouse Family Estate Lawyers across BC at 1-877-602-9900