What happens to spousal support when the person making the payments (the “Payor”) passes away? Does the spousal support die along with the Payor or does the obligation survive, binding the estate of the Payor?
When married or common-law couples end their relationship, sometimes spousal support arises. Spousal support is payment from one spouse to the other in recognition that one of the parties to the relationship may have sacrificed their own financial independence to help the overall landscape of the relationship whether that was providing care to the children of the marriage or giving up opportunities they would have otherwise been able to pursue had they not been supporting their partner. Spousal support is usually paid pursuant to a separation agreement or a Court order.
Pursuant to s. 170(1)(g) of the Family Law Act of British Columbia (the “Act”), an order respecting spousal support can provide for payment after the death of the Payor. S. 171(1) of the Act provides the elements that have to be present before a Court will order spousal support after the death of the Payor:
- that the person receiving child support or spousal support has a significant need for support that is likely to continue past the death of the person paying child support or spousal support;
- that the estate of the person paying child support or spousal support is sufficient to meet the need referred to in paragraph (a) after taking into account all claims on the estate, including those of creditors and beneficiaries; and
- that no other practical means exist to meet the need referred to in paragraph (a).
If there was an agreement or order in place that provides for spousal support after death, then those provisions will have full force and effect and will bind the Payor’s estate until the period of payment provided for in the agreement or order expires. To end the spousal support payments before the agreement or order expires, the Personal Representative of the Payor’s estate can apply under s.171(2) of the Act to set aside the agreement or order.
If the agreement or order for spousal support is silent as to whether spousal support survives death, the person receiving support can apply under s.171(3) of the Act to get an order requiring the Payor’s estate to continue to pay spousal support.
What about spousal support payments that are in arrears at the time of the Payor’s death? Any spousal support payments in arrears at the time of the Payor’s death, will constitute a debt of the Estate: L.S.M.K. v. J.W.K., 2019 BCSC 2025.
Please contact Heath Law LLP at 250-753-2202 if you have any questions regarding spousal support or have any other Family Law related concerns.