Spousal Support – Are You Still on the Hook After You Die?
Even the most thorough of separation agreements and court orders can overlook one important scenario: What happens to spousal support obligations if the paying spouse dies? Is the estate of the deceased’s spouse’s still obliged to pay?
Unfortunately, many separation agreements and court orders are silent on this issue, and in the event of the paying spouse’s death it often becomes an issue to be disputed with the estate and, ultimately, put before a court to resolve. The court’s role in these situations is to try to deduce both parties’ unstated intentions from the wording of the agreement or order. To do this, courts may look at not only the clause dealing with support, but also at other clauses in the document as well. For the interpretation of separation agreements, the court will have a broader range of information available; for example it may look at the circumstances that existed at the time the agreement was entered into. In contrast, a reviewing court’s capacity to interfere with an earlier court order dealing with support is relatively limited, but it is still possible.
Naturally, the outcome will depend on the facts and circumstances of each case. Courts will also consider numerous legal factors including contractual elements, the legislated objectives of the family law regime, and the common-law concept of “fairness”. In Ontario, the Court of Appeal in Linton v. Linton tackled the question of whether the court had the jurisdiction to make an order for spousal support that extended the obligation beyond the paying spouse’s death, effectively binding his or her estate. It found that although the Divorce Act had no specific provision allowing for such an order, the overall policy of that Act favoured such an approach, and this approach was amply supported by the jurisprudence. This same conclusion on jurisdiction has been reached in other Canadian provinces, and a survey of the cases suggests that overall courts are increasingly willing to conclude that support payment obligations can extend beyond death.
Moving past the legal framework, however, the case-by-case outcomes are never predictable. Certainly, the wording of individual agreements and orders can vary widely, but even with similar wording the cases from across Canada have differing results.
For example, the Ontario case of Baker v. Baker dealt with an agreement between the spouses providing that spousal support payable by the husband was to continue for the duration of the recipient wife’s “natural life”. The court concluded that when the support provision was read together with the provision that bound the husband’s estate, it was clear that the parties intended that the payments continued as long as the wife was alive, and therefore the obligation survived the husband’s death.
On the other hand – and perhaps surprisingly – in the Saskatchewan decision of Myrden v. Myrden Estate a provision in a separation agreement stipulated that support would be “paid by the husband to the wife for life”. That clause was held to mean that the wife’s support was only payable as long as the paying husband was alive; it terminated upon his death and his estate was not liable to continue paying her.
In these two cases, the court at least had a written provision to refer to (however unclear) and therefore had some indication of what the parties’ intentions might have been. But in other cases, courts have sometimes found that a contractual obligation to pay post-death spousal support can arise even where there is no express wording to this effect.
This being the case, whenever spouses are considering entering into a separation agreement it is important obtain advice from a family law lawyer in advance, so that the question of whether and how support obligations will continue after the paying spouse’s death is clearly and unambiguously reflected in the resulting document. If the agreement is silent on the question, not only will the surviving spouse be unclear on his or her rights, but the resolution of the question may become costly and the legitimate estate-planning objectives of the spouse who has died may be frustrated as well.
For the full text of the decisions, see:
Linton v. Linton (1990), 30 R.F.L. (3d) 1 (Ont. C.A.)
Baker v. Baker (1976), 1976 CarswellOnt 185, 28 R.F.L. 78 (Ont. H.C.)
Myrden v. Myrden Estate (1981), 1981 CarswellSask 72, 12 Sask. R. 115 (Sask. Q.B.).