Asset Division of Deceased Spouses – Vancouver Family Lawyers


Has your ex-spouse passed away after you started a family action? Are you unsure of whether you are entitled to an asset division following your spouse’s passing? Contact experienced Vancouver Family Lawyers to navigate the most unusual and complex set of facts.


In a recent decision, Surrett v. Butkiewicz, 2018 BCSC 2194, the court grappled with an unusual set of facts wherein both spouses in a family law claim were deceased and their estates conducted the family law litigation on their behalf. The issue was whether there should be an asset division pursuant to Part 5 of the Family Law Act.

In this case, the claimant and the respondent lived together for many years. The claimant filed a notice of family claim on February 18, 2014. A week later, the parties got into a heated argument which resulted with the respondent killing the claimant by striking her on the head. In October 2014, while on bail facing a murder charge, the respondent took his own life. The deceased claimant’s daughter Tammy Miles, a representative of her estate, and the respondent’s daughter Susan Butkiewics, a representative of the deceased respondent’s estate, conducted this litigation.

The claimant alleged in her Notice of Family Claim the parties were in a marriage-like relationship from 1986 to February 3, 2014. Given that, she argued that she was a spouse of the respondent.

The respondent alleged that the parties were in a marriage-like relationship from 1987 to about Thanksgiving of 2000. Following the separation, the claimant lived in his home as a tenant or roommate. The respondent alleged that this arrangement persisted for over a decade until he killed the claimant.

The date of separation

The first issue the court had to determine was the date of separation. The court made some of the following findings of fact and determined that the parties were spouses until September 17, 2013:

  • There was no specific evidence to support the deceased respondent’s position that the parties separated over the 2000 Thanksgiving weekend;
  • There was no credible evidence adduced to show that the deceased claimant ever paid rent or made anything more than minimal payments towards household expenses;
  • The claimant was completely financially dependent on the respondent;
  • The claimant was prepared to stay with the respondent long after many other women were prepared to abandon him;
  • The deceased respondent was willfully fabricating a false history of his relationship with the claimant to ensure that she got none of his money other than the minor bequest provided in his will;
  • There was a likely separation in the early 2000s between the parties, but they reconciled by 2006;
  • The deceased claimant was materially and emotionally dependent on the respondent;
  • The respondent confirmed himself in the 911 phone call that the claimant was his common-law spouse and he didn’t use said term by mistake;
  • The claimant had her first Access Pro Bono consultation on September 18, 2013, in which she was seeking legal advice because the respondent had told her to move out.

The court also heavily relied on the evidence of the claimant’s friend Ms. Flurer whom the court found straightforward and credible.

Division of assets

The claimant sought 50% of all of the respondent’s property without exclusion. The respondent argued that all of his assets are excluded property and equal division of the excluded property’s increase in value during the parties’ relationship would be significantly unfair, and sought a reapportionment to himself of 100% of any such rise in value.

The court determined that the deceased claimant was entitled to a judgment in the cumulative total amount of $126,863.39, as well as, her 50% share of the US cash, and her 50% share of the rise in value of the respondent’s property located at 236 3rd Street West, Brooks, Alberta.  Said amount constituted a charge on the respondent’s estate which was to be paid out before the residue of the estate is distributed in accordance with the respondent’s last will and testament.

If you are separated, thinking of separating or in the process of getting a divorce, and dealing with a complex set of facts contact Vancouver Family Lawyers to see how we can help.

Go to top