Does Spousal Support Continue After Death? Life Insurance in BC

If you pay or receive spousal support, you may worry about what happens if the payor dies. For many recipients, support is a main source of income, and for many payors, the concern is what burden their estate will carry.

British Columbia's Family Law Act addresses both sides. This article explains when support can continue after death, how life insurance can be used as security, and what to check in your own order or agreement.

This article covers the law of British Columbia.

Can support continue after the payor dies?

Sometimes. Under the Family Law Act, section 170, an order may continue after death as a debt of the estate. That does not happen automatically in every case.

Section 171 sets conditions. Before support continues after the payor's death, the court must find ongoing significant need, sufficient estate assets, and that no other practical means exist to meet the need. This is a demanding test, and each part depends on the facts.

Support is not limited to people who are still together. The Family Law Act says a spouse includes a former spouse, so a person can claim support after the relationship has ended. Unmarried partners can also be spouses if they have lived together in a marriage-like relationship for a continuous period of at least 2 years. For spousal support, an unmarried partner with less than 2 years of cohabitation can still qualify if the couple has a child together.

How life insurance and other security fit in

The same section 170 says an order may secure payment against property and may require life insurance designations. In plain terms, a court can order that a payor name the recipient to receive life insurance proceeds, so that support is protected if the payor dies.

The Divorce Act applies only to married or formerly married spouses seeking a divorce-related order. On application, a court under that Act may make an order requiring a spouse to secure or pay support. Whether it deals with death or insurance in your case depends on your situation, so it is worth confirming with a lawyer.

• Periodic payments or a lump sum may be ordered.
• Payment can be secured against property.
• Life insurance designations can be required.
• Support can continue after death as a debt of the estate, subject to the court's findings.

The estate's side

The personal representative of the estate may apply to change or end an agreement or order. That means a recipient should not assume that an order will simply carry on against the estate without challenge.

Whether the estate has enough assets, and whether other resources like insurance or pensions meet the recipient's need, will matter. A lawyer can help assess how an order or agreement would play out for a particular estate.

An order stays in force until a court or an agreement changes it, and a payor who simply stops paying first accrues arrears that remain enforceable. How this applies to an estate depends on your situation, so it is worth confirming with a lawyer.

Your agreement or order matters most

Many couples deal with this in a written agreement. An agreement can state when support changes or ends, and a spouse may release the other from support liability. A written agreement filed in court is enforceable as an order.

A written support agreement filed in court can be enforced as an order, and enforcement can be through the BC Family Maintenance Agency or by court application.

A witnessed written spousal support agreement can be set aside or replaced in whole or part only on specified grounds, such as nondisclosure of income, property or debts, or if it is significantly unfair. If you want life insurance or estate protection, a sensible time to address it is when the agreement or order is made.

Separately, support orders can be reviewed or varied if circumstances change. Under section 167, a court may change, suspend or end an order if there has been a change in either spouse's condition, means, needs or other circumstances.

Whether a new relationship or remarriage ends or reduces support depends first on the order or agreement, and the payor must apply to change or end support. If an agreement or order does not address whether support may be reviewed, and the payor starts to receive or the recipient becomes eligible for pension benefits, a court may on application confirm, change or end the support.

What to do next

• Read your order or agreement for any clause about death, security or life insurance.
• List the payor's insurance policies, pensions and main assets, if you can.
• Ask whether the current beneficiary designations match what the order requires.
• Keep records of payments made and any arrears.
• Talk to a lawyer before changing insurance or estate plans, especially if an order requires security.

Frequently asked questions