As a family law lawyer, I sometimes get asked the uncomfortable question, if my spouse dies, am I obligated to continue paying him or her spousal support.
In some circumstances, it is possible that despite the fact your ex spouse has passed away, you may be required to pay spousal support to his/her estate.
To determine whether or not your obligation continues, you will need to review the terms of your separation contract and all your relevant court orders, including your Divorce Judgement. The question of the continuation of this obligation will also depend on a number of factors, some of which include the terms of your separation contract, whether the obligation is binding on your and/or your spouse's estates, whether the contract contemplates death, whether the obligation is a "needs" based claim, and/or whether the obligation is reviewable.
In Alberta, the Courts have held that if your spousal support obligation is contractually based, i.e. the requirement is outlined in a contract, you could potentially be required to pay support to your deceased spouse's estate.
In the recent decision, Re Marasse Estate, 2017 ABQB 706, Justice D.R. Mah held that monthly spousal support payments required pursuant to the parties' separation contract (the "Contract") were payable despite the fact the wife had died.
In coming to its conclusion the Court completed a thoughtful legal analysis, the most salient points being:
1. there was an enurement clause in the Contract binding the parties obligations to their estates;
2. the spousal support provisions in the Contract were non-reviewable and terminated after 60 months; the Court interpreted this as being non-reviewable even upon death;
3. the spousal support was not considered "needs" based and, therefore, it was irrelevant that the wife (being dead) technically did not "need" support any longer;
4. the Contract contemplated all the parties' issues globally, meaning the spousal support and property division were negotiated and agreed upon as a whole; and
5. the Contract did contemplate death and did not stipulate the payments were to terminate upon the death of the wife.
Further, the Court noted that a contract may be enforceable after death and nothing in the Contract in Re Marasse, suggested that the wife's death would extinguish the husband's obligation to pay her spousal support.
It is important to know that every situation in the family law context is unique and will depend on the specific circumstances of the parties and more importantly, how their contract is drafted. If you have a question about your current spousal support requirement now, or in the future, you should contact a lawyer to review your potential obligations.