If one of the spouses dies after separation and a Family Law proceeding has been commenced, that spouse’s estate can continue the Family Law proceeding notwithstanding the spouse’s death.

 

If, however, the spouses have separated and a Family Law Action has not been commenced, the issue is

 

  1. can the surviving spouse commence a Family Law Action and pursue a claim against the deceased spouse’s estate? and
  2. can a deceased spouse’s estate commence a Family Law Action to pursue a claim against the surviving spouse?

 

The answers are as follows:

  1. the surviving spouse has the right to commence a Part 5 division of property proceeding against the estate of the deceased spouse; and
  2. the estate of the deceased spouse does not have the right to commence a Part 5 division of property proceeding against the surviving spouse on the theory that the estate is not a spouse or former spouse.1

 

1Anna Laing & Helen H. Low, Separation and Death: The Interplay between the Family Law Act and the Wills, Estates and Succession Act, WESA for Family Lawyers, 1.1.6 (October 2014)

 

Deborah A. Todd & Property Division
Deborah A. Todd