The Effect of a Spouse’s Death on Property Division – Separation, Divorce and Family Law, Victoria, BC

If one of the spouses dies after separation and a Family Law proceeding has been commenced, that spouse’s estate can continue the Family Law proceeding notwithstanding the spouse’s death.

If, however, the spouses have separated and a Family Law Action has not been commenced, the issue is

1. can the surviving spouse commence a Family Law Action and pursue a claim against the deceased spouse’s estate? and
2. can a deceased spouse’s estate commence a Family Law Action to pursue a claim against the surviving spouse?

The answers are as follows:

1. the surviving spouse has the right to commence a Part 5 division of property proceeding against the estate of the deceased spouse; and
2. the estate of the deceased spouse does not have the right to commence a Part 5 division of property proceeding against the surviving spouse on the theory that the estate is not a spouse or former spouse.¹

¹Anna Laing & Helen H. Low, Separation and Death: The Interplay between the Family Law Act and the Wills, Estates and Succession Act, WESA for Family Lawyers, 1.1.6 (October 2014)