A Final Complication: When a spouse dies before divorce or separation is finalized.

Divorce or separation is a difficult process that can become even more complex if a spouse or adult interdependent partner dies before the legal proceedings are finalized. 

In Alberta, the rules that govern divorce, separation, and Wills and Estates law converge, creating unique challenges. The death of a partner does not necessarily mean that the family law process is discontinued; the outcome often depends entirely on the timing of key legal steps taken before the person passed away.

Can Divorce Proceedings Continue After a Spouse Dies? 

The death of a spouse automatically terminates the marriage or adult interdependent partnership. This means you do not need a divorce order. However, the division of family property may continue, depending on when the claim started. 

As determined in Dressler v Dressler, 2005 ABQB 93, if a claim for family property division was not commenced before the spouse's death, the estate cannot initiate one afterwards. However, if the deceased spouse commenced a family property claim before their death, their Estate can continue the action, as set out in Obradovic Estate v Obradovic, 2013 ABQB 470 (Obradovic Estate v Obradovic). 

Severing Joint Tenancy for the Family Home 

Continuing the property claim can be significant. If a family home or other property is held in joint tenancy, the deceased's interest normally passes automatically to the survivor by right of survivorship. This means that the surviving spouse will automatically get the entire interest in the property. 

This removes the property from the deceased spouse’s estate so if the spouse had left half of the property to someone in their will, that provision in the will would not be valid. However, if a property action is commenced, an estate's ability to claim an interest in jointly-held property may not be extinguished by the death of one party. As set out in Obradovic Estate v Obradovic, the surviving spouse may hold the title subject to the Estate’s right to claim an interest under the Family Property Act (FPA). 

If this is the case, the courts will look closely at the intention of the parties prior to death. As determined in Flock Estate v Flock, 2021 ABQB 502, the commencement of divorce proceedings and family property proceedings, especially when combined with a prolonged period of living apart, can be evidence of an intention to sever the joint tenancy, effectively converting it to tenancy in common. 

Unlike joint tenancy, tenancy in common does not mean that someone’s interest in a property automatically transfers to the surviving party. Effectively, what the court is determining is that the surviving spouse is not automatically entitled to the deceased spouse’s claim if a family property action was commenced and there is sufficient evidence that the deceased spouse does not want the surviving spouse to receive that property. 

Further Consideration by the Court 

The court's evaluation of the appropriate property division does not stop with the family home. When a property claim is ongoing at the time of death, the court must determine the equitable division of the remaining family property. Crucially, they must also consider any benefit received by the surviving spouse as a result of the death (FPA s. 11(3)). 

For example, in Dunn Estate v Dunn, 1994 CanLII 9136, the wife automatically received the full interest in the jointly-held family home due to the right of survivorship. While the home itself was no longer part of the divisible pool of property, the value of the full interest she acquired was factored into the overall division of the remaining assets, ensuring a fair result for the estate. 

Impact on the Will 

It is also important to determine if the divorce or separation is final because that may determine if someone dies intestate. A person dies intestate if they do not have a valid Will. If this is the case, the Intestate Succession Act sets out how the deceased’s property should be divided.  

Section 25 of the WSA states that a will is automatically revoked by a divorce or the termination of an adult interdependent partnership. However, as set out in Parchen Estate (Re), 2016 ABQB 345, if the divorce or termination process was initiated but not finalized before death, the Will may still govern the estate's distribution, meaning the intestacy rules do not apply. 

Testator’s Obligations 

Finally, it's important to understand that commencing a separation or divorce does not eliminate a deceased spouse's obligation to provide for their partner. 

Even if the relationship ended, Part 5, Division 2 of the Wills and Succession Act (WSA) allows the court to alter the distribution of a Will to provide for the proper maintenance and support of a surviving family member. 

When assessing whether the support is adequate, the court is guided by the principles set out in Koma v. Tomich Estate, 2011 ABCA 186, which grants the court wide discretion. Ultimately, the court will evaluate whether the surviving spouse's existing share of family property provides sufficient funds to cover their needs before making any further awards from the estate. 

---

Conclusion

In effect, when a spouse or partner dies after separation or divorce proceedings have begun but before they are finalized, determining the most appropriate division of family property becomes extremely complex. On one hand, the parties clearly intended to separate their finances; on the other, the lack of a final agreement leaves the intended extent of property division unclear. Stokes Law LLP is here to help you navigate this complex process and determine the most equitable division of family property.

BOOK A CONSULTATION