Can the estate of a deceased spouse commence a family law claim on their behalf?

What happens if a spouse has separated from their partner, but prior to their death does not commence a family law claim for division of assets? Can their estate commence a family claim even when the deceased made no such effort?

Background

This issue arose in the case of Weaver Estate v. Weaver, 2022 BCCA 79. The couple were married in 1993 and then separated in 2005. Fifteen years later, Ms. Weaver passed away. Despite the lengthy separation, there was no divorce order, nor any family law agreements or outstanding proceedings between the Weavers. The administrator of her estate shortly filed a notice of family claim against Mr. Weaver seeking a division of family property. Mr. Weaver filed a jurisdictional response, arguing the claim should be struck on the basis that the administrator did not have standing to bring the claim. The Chamber’s judge dismissed Mr. Weaver’s application.

Law

The two regimes relevant to this case are the Family Law Act and the Wills, Estates and Succession Act.

Section 81 of the Family law Act stipulates that on separation, each spouse is entitled to an undivided half interest as a tenant in common in all family property and is equally responsible for family debt.

Section 150 of the Wills, Estates and Succession Act states that a cause of action or a proceeding is not annulled by reason only of the death of the person who had the cause of action. It continues that the personal representative of a deceased person may commence a proceeding the deceased person could have commenced, with the same rights and remedies to which the deceased person would have been entitled, if living.

Ruling

The BCCA dismissed Mr. Weavers appeal. The court stated that through the combined application of these two provisions, an 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 is not necessary that a claim be pursued before the death of a separated spouse. The requirement is that the deceased had a potential cause of action.

The court also stated in making their decision that an injustice would be created if they allowed the appeal. This results from the asymmetry that the surviving spouse would still be allowed to make claims against the estate under the Family Law Act, but the reverse would not be possible.

Limitation period

Under section 198 of the Family Law Act, a spouse must initiate their court action no later than two years after the granting of a divorce or the date on which the marriage was declared a nullity. It was not an issue in this case, but the court said that an administrator of an estate would have two years from the date of the separated spouse’s death to commence a claim for division.

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