What happens to my Family Law Claim if I die?

If a party to a Supreme Court family law proceeding dies before the matter is resolved, the rules of court allow the case to continue.

Family law proceedings can also be started after one party has died provided, of course, that they are filed in the within the appropriate time period. Under the Family Law Act, S.B.C. 2011, ch. 25, proceedings with respect to property division and spousal support must, for common-law partners, be started within 2 years of the date of separation and, for married couples, within 2 years of the date of an order for divorce.

In either case, the deceased party must be represented by someone acting on behalf of their estate. In some cases, claims relating to support may not be pursued, but property division claims can be continued for the benefit of the deceased party’s estate.

Assets or amounts payable to the deceased party at the resolution of the claim will be paid to their estate, and, after payment will debts, will pass to the beneficiaries of the deceased party’s estate.

These provisions are necessary for situations where spouses have separated, but have not initiated or completed property division and other matters. Upon separation, both married and common law spouses cease to be spouses under the Wills, Estates and Succession Act, S.B.C. 2009, ch.13. As a result, a separated spouse is not entitled to inherit on intestacy (where the person dies without a will) or under a will that was drafted prior to inheritance, and doesn’t have standing to apply to vary a will. As such, family law proceedings may be the only avenue to complete division of assets and resolve issues relating to the parties’ separation.

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