Is spousal support available after death?

by Field Law
Contact

Perhaps encouraged by the recent decision in Marasse Estate, we have another recent case from the Alberta Court of Queen’s Bench addressing an estate’s ability to claim spousal support and its liability to pay spousal support.  Stalzer v Stalzer, 2018 ABQB 191 is reassurance to estate planning and family law practitioners that a person’s obligation to pay spousal support to their deceased ex-spouse’s estate is not a general rule of law and was specific to the drafting of the various agreements in play in Marasse.

In Stalzer, the executor of the deceased husband’s estate brought an application against the deceased’s wife for retroactive child support, unequal property division and occupation rent.  The wife brought a cross-application for retroactive spousal support and child support, and unequal division of matrimonial property.  The matter was heard as a Special Chambers application, which is hearing for any matter that will take longer than 20 minutes to argue, and is usually argued on the basis of written affidavit evidence alone.

Background

At the time of the husband’s death, the parties had been separated for close to 10 years.  There were three children of the marriage, one of whom was a minor at the date of death.  After the separation, the children initially lived with the mother in the matrimonial home.  They all eventually moved in with their father.  The husband had commenced a claim for divorce and division of matrimonial property, but no agreement and no Court Orders issued in the meantime.  The husband initially voluntarily paid child support, but he reduced those payments as each child moved in with him, eventually stopping altogether.

After the husband’s death, the wife made an application for child support.  Two Consent Orders were granted by the Court as a result: the first named the eldest daughter as the guardian of the youngest and provided that the youngest daughter would continue to live in her usual residence under the care of the executor (the deceased’s brother).  The second Order required the wife to pay child support to the executor.

Issues at hearing

Justice Read considered four issues in total, but two are material from an estate practitioner’s perspective:

  1. Can an estate maintain a claim for retroactive child support against the spouse of the deceased, and can a surviving spouse maintain the same kind of claim against the estate of a deceased spouse?
  2. Can a spouse maintain a claim for retroactive spousal support against the estate of the deceased spouse?

On the first issue, Justice Read considered the Survival of Actions Act, the Divorce Act and the common law.  She concluded that nothing in the Survival of Actions Act prevented a personal representative from bringing or defending an action for retroactive child support.  However, based on the wording of the Divorce Act, she held that the general rule respecting survival of actions did not apply in the family law context if the initial application was being made only after the death of one party.

Justice Read confirmed that based on her interpretation of the Divorce Act, absent a specific order or agreement making an obligation binding on the estate, child support obligations are personal and die with the spouse.  This is because that act only obligates spouses or former spouses to pay child support.  A deceased person did not meet that definition, neither did their estate, which is a legal concept, but not a legal entity.

The Court reached the same conclusion on the second issue on the same basis.  Justice Read relied heavily on the reasoning in the British Columbia case of Petley-Saba v Saba, 2017 BCSC 667, for the principle that support obligations do not continue beyond the death of the payor, absent a specific agreement or Court order.

The takeaway

The result in Stalzer is probably what the surviving spouse in Marasse was hoping for.  However, as we’ve seen, committing spousal and child support obligations to writing or to a Court order is key to their enforceability following the death of one of the spouses.  On the other hand, not paying adequate attention to the effect of such clauses may have catastrophic consequences for the surviving spouse.  This case is yet another reminder that an ongoing dialogue between the family lawyer bar and the estate planning bar in Alberta should be encouraged on a regular basis.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Field Law | Attorney Advertising

Written by:

Field Law
Contact
more
less

Field Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.