Although it’s not something most of us like to think about, the issue of whether our dependents will be provided for after our deaths is one that we should all think about. This is particularly true in families in which there is a rift due to separation or divorce, since the lack of cohesion often means that once you have died, there is little guarantee that your surviving spouse will accommodate your wishes or share your viewpoint on important matters.
Fortunately if there is a court order in place, which mandates that you pay spousal or child support, then there is at least some certainty around the amount of the financial obligation. However, there are still some important points to know:
- If your support obligations are defined by agreement or court order, then those arrangements will usually govern even after your death. (This will depend on the facts, though).
- This means that – unless the court order or separation agreement provides that your support payments will end upon your death – then your support obligations will continue afterwards, and your estate will continue the payments or else pay out a lump sum to compensation for weekly or monthly support payments.
- Under the Ontario Succession Law Reform Act, you are also required to provide for your dependents after death. If you do not do so (by way of Will), the court may make an award from your estate, essentially rewriting your Will.
- For these purposes, a family member (i.e. usually a child) to whom you were providing support or were under a legal obligation to provide support immediately before your death is also considered a “dependent”. Similarly (and perhaps surprisingly), a spouse from whom you are separated (but not yet divorced) – including a common-law spouse of the same or opposite sex – is also still considered a “dependent” at the point of your death, pursuant to the Act’s provisions.
- Claims by either category of “dependent” are made under the Succession Law Reform Act, pursuant to what is called a “dependent’s relief claim”. The court considers the amount of child or spousal support you were paying at the time of your death, as well as additional assets (e.g. insurance proceeds, money obtained through the ownership of a home).
Do you have questions about your child or spousal support obligations after you die? We can answer all your questions. Contact us for a consultation.
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