Death after Separation but before Divorce

In an interesting case out of the BC Court of Appeal, the Administrator of the Estate for the deceased wife filed a Notice of Family Claim against the surviving spouse. The case involved two married individuals who were separated for 15 years and took no steps to finalize a divorce in that time. An additional twist is added with the unfortunate death of the wife that still held “family property” at the time of her death some 15 years after separation, which was not divided between the parties. Was the husband in the clear as a result of her death? Would the wife’s estate even be able to initiate a claim against the surviving husband?

Well, the case of Weaver Estate v Weaver, 2022 BCCA 79, involved a husband and wife who married in 1993 and separated in 2005. The wife passed away in 2020 and it was at this time that the appointed administrator of the late wife’s estate filed a Notice of Family Claim against the surviving husband for a division of family property and family debt, pursuant to section 81 of the Family Law Act, S.B.C. 2011, c. 2 (the “FLA“).

After separation in 2005 and prior to the wife’s passing, no divorce order was issued, no family law agreements were reached, and no proceedings existed between the parties. The wife did consult legal counsel with a plan of dividing family property and obtaining a divorce, but no court actions were commenced by either party.

At the initial proceeding, the husband filed a jurisdictional response and applied to have the wife’s Notice of Family Claim struck based on his argument that the Administrator of the Estate lacked standing to bring the Notice of Family Claim which results in the Supreme Court having no jurisdiction to hear the proceedings. The husband’s chambers application was dismissed, which he then appealed to the Court of Appeal.

The Court of Appeal found no error and dismissed the husband’s appeal.

The husband’s main arguments were:

  • the family law claim did not survive the death of his former spouse;
  • his former spouse died before the Notice of Family Claim was filed;
  • the wife’s status as a “spouse” terminated with her death;
  • the cause of action which arises as a result of being a spouse ceased to exist at the time of his former spouses death – meaning there was no spouse, only an estate;

The Administrator’s main arguments were:

  • the serving spouse may commence a claim for the division of family property and family debt against the estate of the deceased spouse, to which he relied on Gibbons v Lingston, 2018 BCCA 443;
  • the FLA does not specify that the spouse must be alive at the time the entitlement is asserted or a proceeding is commenced;
  • the deceased spouses entitlement to an undivided half interest in family property as a tenant in common and equal responsibility for family debt arose as at the date of separation, which was prior to the deceased death.
  • The effect of Section 150 of the Wills, Estates, and Succession Act, S.B.C. 2009 (“WESA“), c. 13, and Rule 8-2 and Rule 20-6 of the Supreme Court Family Rules are to permit applicants, other than actual spouses, with the ability to initiate and pursue claims on behalf of the estate; and
  • if the entitlement triggered by section 81 of the Family Law Act does not survive the death of the spouse because it terminates with the personal status of the deceased individual, then the commencement by the survivor, against the deceased’s estate, or the continuation of a proceeding already initiated, would not be allowed after the death of the spouse, as it no longer belongs to the deceased individual.

The Court of Appeals reasoning:

None of ss. 3, 94 or 198 of the Family Law Act specify that only a living spouse may bring a claim for the division of family property and family debt. The Court then reviewed similar provisions in the jurisdictions of Manitoba, Ontario, the Northwest Territories and Nunavut.

Within the jurisdiction of BC, the interest created by s. 81 of the FLA is a statutory claim to property rights that does not abate on the death of the individual, Dowell Estate v Dowell, 2009 BCCA 175 at para. 31. The interest created by s. 81 crystallizes on separation, therefore the date of separation is the “triggering event” for the rights established pursuant to s. 81 of the FLA. The FLA does not require a spouse to commence a court proceeding for s. 81 of the FLA to operate or take effect.

The interplay and effect of section 150 of the WESA is such that it allows for actions to survive the death of the deceased for the benefit of the estate, subject to any such claims which are specifically excluded. Family property and family debt claims are not such claims that are specifically excluded by section 150. If the provincial Legislatures intended to preclude personal representatives of a deceased spouse from commencing an action post-death to enforce a claim to family property and debt, they would have used clear language to that effect.

The Court also agreed with the Administrator that a substantial injustice would occur if the husband’s interpretation were accepted. It would permit a separated and surviving spouse to seek relief against the estate of the deceased spouse, but not the other way around. The Court further referenced Hansen Estate v Hansen, 2012 ONCA 112 which confirms that upon the death of a co-owner in a tenancy in common, the deceased’s interest in the property passes to his/her estate.

With respect to the triggering of the two-year limitation period created by s. 198(2)(a) of the FLA, the Court in obiter stated that based on the modern principle of statutory interpretation the limitation clock may be triggered, which would require the administrator of an estate to commence an action prior to the two year anniversary of the deceased spouses death.

In summary, the Court concluded that the administer of a separated and deceased spouse may commence a claim for the division of family property and family debt against the surviving spouse, barring in mind the two-year time limitation prescribed by s. 198 of the FLA.







Domenic Maio

Barrister and Solicitor

Lawyer practicing in the areas of Family Law, Wills, and Corporate.

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