A spouse who has separated from their partner does not meet the definition of a “spouse” under the Wills, Estates and Succession Act.  This means that they are not entitled to advance claims under that act, most notably wills variation claims or claims to entitlement on in intestacy.  Prior to death, the separated spouse could have brought a claim for property division under the Family Law Act.  What happens if a spouse has separated from their partner, but does not commence a family law claim for division of property prior to death?  Can the deceased’s estate commence a family law claim on their behalf?

The B.C. Court of Appeal recently considered this issue in Weaver Estate v. Weaver 2022 BCCA 79. In Weaver, the deceased married the defendant in 1993.  They separated in 2005.  The deceased passed away 15 years later.  While the deceased had consulted with a family law lawyer, no proceedings were commenced.  There were no divorce orders or other court orders, and there was no family law agreement.

After the deceased’s death, the administrator of her estate filed a notice of family claim against the deceased’s ex-spouse, seeking a division of property.

The surviving spouse applied to have the claim struck due to lack of standing to bring the claim, or lack of jurisdiction.  The application was dismissed, i.e. the family law proceeding brought by the administrator was allowed to continue.  This decision was upheld on appeal.

The interplay between the Family Law Act and the Wills, Estates and Succession Act allows the administrator of a separated and deceased spouse to commence a claim for the division of family property, as long as the time limits have not expired.  The fact that the deceased spouse did not personally commence that proceeding during their lifetime is not a bar to the action.

The Family Law Act provides that on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.  This applies to married spouses, and “common law spouses” (who lived with each other in a marriage-like relationship – the term “spouse” is defined in the Family Law Act).  The interest crystallizes upon separation, and does not expire upon death.  The triggering event is separation.

The Family Law Act sets out a limitation period for bringing a claim for division of property.  The claim must be started no later than two years after, in the case of spouses who were married, the date a judgment granting a divorce of the spouses was made, or the date an order was made declaring the marriage of the spouses to be a nullity.

There is nothing in the Family Law Act which expressly prohibits an estate from commencing a family law claim for property division on behalf of a deceased spouse.  The Wills, Estates and Succession Act confirms that a cause of action or proceeding is not annulled by reason only of the death of a person who had the cause of action, and the personal representative for the deceased person may commence or continue a proceeding that the deceased person could have commenced or continued.

The Court of Appeal also agreed that a finding to the contrary “would result in a gap that carries the realistic potential for substantial injustice.”  A separated and surviving spouse could seek the division of family property and family debt against the estate of the deceased spouse.  The estate of the deceased spouse must have the same entitlement as against the surviving spouse.  As noted above, a separated spouse does not meet the definition of “spouse” entitled to advance a claim for relief under the Wills, Estates and Succession Act.  If the Court of Appeal did not reach the conclusion that it did, the estate of the deceased spouse would be cut out of both the Family Law Act regime, and the Wills, Estates and Succession Act regime.

The Court of Appeal was not asked to decide the issue of the limitation period for bringing a family law claim for division of property on behalf of a deceased spouse.  However, they “noted” that principles of statutory interpretation may support the position that the administrator of an estate would have two years from the date of death of the separated and deceased spouse to commence such a claim.  An administrator would be well-advised to commence an action on behalf of a deceased and separated spouse within the two years if at all possible to do so.