If spouses have separated and one spouse dies before their property has been divided, can one spouse commence a court action against the other or against the other’s estate?
If a court action has been commenced before one spouse dies the action can continue and be conducted by the executor of the estate notwithstanding the spouse’s death.
If spouses have separated but a court action has not been commenced the surviving spouse can file a claim against the deceased’s estate to have the property divided.
If a court action has not been commenced before the spouse dies, the estate of the deceased person cannot sue the surviving spouse to have property divided because the estate does not qualify as a spouse pursuant to the definition in the Family Law Act.
Because of this it may be important for a person who has separated and who knows they are dying to commence a court action to have their property divided before they die possibly to ensure that their children or other beneficiaries obtain their share of the family property.
Deborah A. Todd