The Obligation To Pay Spousal Support May Survive The Death Of The Recipient Spouse?
The obligation to pay spousal support may survive the death of the spouse who receives the support. At first glance, this seems wrong. After all, spousal support is intended to provide for the needs of the former spouse. If s/he is dead, there is no ongoing need for support. However, a recent Alberta Queens Bench decision illustrates that in certain circumstance the obligation to pay support will survive the spouse and the support will have to be paid to the estate.
The couple in question married in 1998 and separated in 2012. They were divorced in 2015. Before the divorce they entered into a contractual separation agreement which provided that the former husband would pay the former wife $3,000 a month for a total of 60 months. The agreement to pay was secured by an insurance policy which would pay the former wife the balance of payments left owing if the former husband died.
The agreement did not state what would occur if the former wife died. Following her death, the former husband sought to vary the terms of the agreement by arguing that there was a material change in the circumstances of the wife (death is a material change) and that she no longer needed the support.
The court rejected this argument and ruled that the right to support was a contractual right and not a court ordered obligation which would die with the spouse. Because contracts can be enforced after death, the former wife's estate had the right to the payments.
The Lesson: when negotiating the division of marital assets it is important to cover what will happen in the event of death. In this case, the parties ensured that payments would continue if the former husband died by securing the payments with an insurance policy. They were silent about what would happen if the former wife died. Simply addressing what was to occur could have easily simplified the matter.
Marasse Estate 2017 ABQB 706 https://www.canlii.org/en/ab/abqb/doc/2017/2017abqb706/2017abqb706.pdf
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