Court Cases & Orders Wills, Estate & Power of Attorney

Can the Court Change the Terms of a Dead Person’s Divorce?

woman mourn in cemetary
Written by Russell Alexander / (905) 655-6335

Last week I wrote about the question of whether a deceased person’s Estate is obliged to continue to pay support to a surviving spouse. This week, in another post, I wrote about whether retroactive support obligations can still be pursued from the Estate of a former spouse who has passed away.

A third, related question is whether the court has a right to retroactively vary the support terms of a Divorce Judgment involving someone who has already died. This was the precise question that arose in an older B.C. case called Despot v. Despot Estate.

The Divorce Judgment between the spouses in that had provided for the wife to receive $500 per month in “maintenance” (which is the term for spousal support order as part of a divorce under the federal Divorce Act). This was increased to $800 per month while both parties were living. It is important to note here that there had also been an earlier separation agreement that also provided for the wife’s support until she remarried or until her death (whichever came first). However, this separation agreement was never incorporated into the Divorce Judgment.

The husband died in 1990. The wife contacted the Estate’s lawyers with a view toward having the $800 per month in spousal support continue; the Estate was not convinced it had the obligation to do so. The wife applied to the court for an order confirming the Estate’s obligation in this regard.

The court considered its ability to make the order requested. First, it untangled a good deal of old and sometimes-contradictory legal precedent (including decisions from Ontario). After doing so it found as follows: the husband’s ongoing obligation to pay spousal support under either the separation agreement or the Divorce Judgment ended the moment the husband died (unless there was a specific agreement between the parties that it was to continue after death and bind the Estate).

This is because the right to receive spousal support under the Divorce Act is a personal right that can only be enforced during the lifetime of the spouse who holds the order. But the same works in reverse, in connection with the death of the person who is paying being paid. Quoting from another decision in a case called Public Trustee of British Columbia (Price Estate) v. Price, the court reiterated:

“A person is a spouse only while married. After the marriage ends a former marriage partner becomes a former spouse. But once a person dies, all that is left is a corpse, an estate, and a personal representative. The corpse is not a person at all. The estate is only a legal concept. The personal representative could be a corporation. None of them is either a spouse or a former spouse.”

In other words, spousal support order cannot be proactively made once the person required to pay is dead, because that person is no longer considered a “spouse” in law. More to the point, a court cannot impose a new obligation on the husband’s Estate that he did not himself have during his lifetime. The court pointed out that there may even be constitutional principles that would prevent such an order.

Here, at the time the Divorce Judgment was made, the wife essentially had to make an election between two choices: either she could rely on the provisions of the separation agreement and not claim any maintenance under the Divorce Act, or else she could claim maintenance. These remedies were alternative ones, and not cumulative. The wife in this case had chosen to take her support via the Divorce Judgment and the maintenance order contained within it. Once the husband died, the order was no longer in effect. The court had no authority to vary it after-the-fact.

In the end, the wife’s application to vary was dismissed.

For the full text of the decisions, see:

Despot v. Despot Estate, [1992] B.C.J. No. 1902; 95 D.L.R. (4th) 62 (B.C.S.C.)

Public Trustee of British Columbia (Price Estate) v. Price [1990] 4 W.W.R. at 52

Russell Alexander Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For further information, or to schedule an appointment, call 1.905.655.6335.



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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.