Death After Separation: Yes, the dead can sue

Family Law

What happens when a couple separates and then one of them dies? The answer to this question recently changed in a very profound way. 

Previously, if a separated spouse started a court action for division of property but died before the action was resolved, that person’s estate or a personal representative could simply carry on the existing action, with all the same rights and entitlements, as if there was no intervening death.  But what if a person did not start an action before they died?  In this scenario, the courts had previously ruled that the estate could not commence an action, which meant that the person’s individual property was administered through their estate, and any property they continued to co-own with their spouse jointly, such as a house registered in joint tenancy, or any joint bank accounts, remained the surviving spouse’s sole property.  However, this is no longer the case.

In the recent decision in Weaver v. Weaver, 2022 BCCA 79, the Court of Appeal held that the administrator of an estate of a separated and deceased spouse may commence a claim for the division of family property and family debt after the spouse’s death.  The property interest underlying the cause of action crystallized on separation and did not abate on death.  In making this decision the Court confirmed that where a couple separated but no action for division of property had been commenced, the estate of a deceased spouse could not bring an action under the Wills, Estates and Succession Act, as they were no longer a “spouse” within the meaning of that legislation by virtue of separation preceding their death. The Court went on to say that if the estate of the deceased in a case like this was not able to bring an action under the Family Law Act, it “would result in a [legislative] gap that carries the realistic potential for substantial injustice”.

What does this mean for your case? That will depend on which side you find yourself on – whether you are the surviving spouse, the estate administrator for the deceased spouse, or a potential beneficiary of the deceased spouse’s estate (especially if they did not leave a will). However, one thing is for certain, you should obtain legal advice from someone who specializes in family law issues. The answers to your questions may or may not surprise you, but they are almost certain to change your intended course of action with this new legal development.  

For more information or assistance with a family law matter, please contact any member of our Family Law team.


Dmitrii Terpylo
Lawyer | Family Law 
Langley778 289 9521

This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.