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Is a Deceased’s Estate Required to Keep Paying Support?

Is a Deceased’s Estate Required to Keep Paying Support?

When someone dies, there are lots of emotions involved, and lots of details to be arranged. In the aftermath, it’s not always easy to focus on the rights and obligations that may arise in connection with the surviving loved ones — and in some cases, the “no-longer-loved” ones.

In particular, the deceased and his or her former spouse may have had a separation agreement in place, or there may have been a court order requiring one spouse to pay support to the other. After the death of the paying spouse, the question arises whether his or her Estate has any ongoing obligation to keep making payments under that agreement or order.

The normal rule – unless the separation agreement or court order expressly states otherwise – support payments are not normally binding on a deceased person’s estate, and the obligation ceases the moment the person dies.

However, that question of whether the agreement or order “states otherwise” can give rise to disputes as to interpretation. In some cases the deceased’s Estate administrator or executor is forced to bring an application to court to determine the question.

Although the facts (and outcome) will vary from case to case, two Ontario cases are illustrative of how this plays out. In the first one, called Brubacher v. Brubacher Estate (Trustee of), the husband and wife had been divorced by way of a Divorce Judgment made in 1996. Upon separation, the parties had agreed that the husband was to pay the wife spousal support for a fixed three-year period, until June of 1999. This commitment was embodied in the formal Divorce Judgment that was issued by the court.

The husband died in 1997. The question arose whether the support obligation survived the husband’s death.

The court considered the circumstances, including the fact that the support order was not open-ended (which it said would normally favour a conclusion that it ceased upon the husband’s death), and that it was made to reflect the parties’ own negotiated separation agreement. Ultimately, on these facts it held that the Divorce Judgment, being specific and time-limited, continued in full force even after the husband’s death, and amounted to a charge on the husband’s Estate.

In the second case, Roth Estate v. Roth, the question was actually not whether the Estate had to pay after death, but rather how much. There, the separation agreement was clearly worded so that the wife was entitled to receive support “for her lifetime”. The husband – whose Estate was worth $24 million – had died a few years earlier. After his death, the Estate continued to pay the wife $10,000 per month for a few years, but it was eager to have that support entitlement brought down. Eventually, the Estate reduced the monthly payment to the wife to just over $5,000, relying on the assertion that the separation agreement contemplated a reduction in the monthly payments “by reason of the resultant income tax consequences” that flowed from the husband’s death. Because upon death there had been a change to the tax deductibility of the spousal support payments that the husband had been making, the Estate claimed that the wife’s spousal support payments should be adjusted accordingly.

Naturally, the wife objected. The matter came to court for resolution.

After a close review of the wording of the separation agreement itself, the court concluded that in reaching that agreement, the parties’ clear intent was to maintain the wife in the same after-tax position following the husband’s death as she enjoyed before. Before the husband died, the monthly support payments were taxable in the wife’s hands, and deductible by the husband (which is the usual situation under Family Law). Once the husband died, any payments by the Estate to the wife were not taxable, but were also not deductible by the Estate from any income that the Estate generated. With this in mind, the court concluded that the wife’s support payment should indeed be adjusted – but after “doing the math” and determined that the reduction should be calculated use the top combined marginal tax rate of 46%.

For the full text of the decisions, see:

Brubacher v. Brubacher Estate (Trustee of), [1997] O.J. No. 2466; 33 O.T.C. 241; 18 E.T.R. (2d) 296; 30 R.F.L. (4th) 276

Roth Estate v. Roth, 2009 CanLII 57455 (ON SC)

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