Couples who live together but are not officially married can have more complicated problems if one of them dies while the other is still alive. When a separated or already divorced spouse dies, it can bring up important questions about property rights, child support, and how assets are divided.
Under Canadian family law, separated spouses may still have some legal rights and duties toward each other, but not as much as divorced couples. It depends on how long and what kind of separation there was. To protect one’s financial security and legacy, it is important to understand these complicated law issues.
Property Division for Separated or Already Divorced Couples in Canada
In Canada, the rules for dividing property are very different for partners who are separated or already divorced. When a couple is legally separated, their marriage is still alive, so family property rules usually apply. These rules say that each spouse should get an equal share of the marital property. This includes things like the family home, pensions, and investments made during the marriage. If the couple lives apart, this separation may still apply, but it depends on how long and why they live apart.
For couples who are divorced, on the other hand, spousal property claims usually end when the divorce is finalized. During the divorce process, property division is generally settled, either by agreement between the parties or by court order. Once the divorce is final, neither party can go back and make new claims to the marital property unless there are very good reasons to do so, like fraud or assets that were not revealed.
Dividing Assets After Death of Separated or Already Divorced Couples
In Canada, the process for splitting a spouse’s assets after death is very different for separated or already divorced couples.
If Your Spouse Had a Valid Will
If a couple is separated and one of them has a valid will, the surviving partner may still be able to inherit the assets listed in the will, unless the will specifically says they can’t. If you are not legally married, your inheritance rights do not end when you are separated unless a court order or formal agreement says otherwise. In other words, a partner who is no longer married could still get certain property, money, or other assets.
For divorced couples, on the other hand, a legal will usually doesn’t include the ex-spouse in the inheritance unless it’s made clear otherwise. Most formal ties to the estate are severed after a divorce, and the ex-spouse has no claim unless it is written in the will.
If Your Spouse Died Without a Will
For separated couples, intestacy laws govern the division of assets, treating separated spouses as legally married. Depending on the rules in the province and whether the person who died had children, the surviving spouse may get all or a large part of the estate.
When a couple is divorced, intestacy rules don’t apply to the former spouses. They are legal strangers, and the law says that the estate of a deceased person should go to other relatives, like children, parents, or brothers.
Common Assets for Division
In Canada, when a couple separates or gets divorced, some of their belongings are usually split. Some of these are:
Family home
In Canada, family law treats the family home, which is often the most important asset. If the home was the main residence during the marriage, both spouses generally have equal rights to the home’s value, no matter who has the legal title. The house is usually shared equally between the couple after they get married, unless there is a deal like a prenuptial agreement that says otherwise.
Joint bank accounts
The money in a joint bank account is also shared property, which means that both people who are married have equal rights to it. When a couple gets divorced, the money can be split evenly unless one person can show that they were the only one who contributed or planned to use the money.
Investments, pensions, and RRSPs
Matrimonial property includes investments, pensions, and Registered Retirement Savings Plans (RRSPs) that were bought during the marriage. These are usually divided fairly, with the court taking into account things like how long the marriage lasted and how much each partner contributed. When these assets are split, the tax effects are also considered.
Debts and liabilities
No matter whose name is on the bill, mortgages, credit card balances, loans, and other shared debts are divided equally. Courts try to ensure everyone shares duty fairly so no one has to carry an unfair burden.
What Happens to Child Support or Spousal Support If Died?
When a spouse who is paying child or spousal support dies, things get complicated. The person who is receiving the support or the spouse who died may have to go through legal steps to take care of these duties.
Child Support
If a parent in Canada who pays child support dies, their estate may still have to make payments. This is especially true if the deceased parent had assets or income that could cover these bills. The parent who is still alive can ask the court for money from the estate to help them out. If the person who died had life insurance or other money-making assets, those could be used to pay the support. If the estate doesn’t have enough money, they can go to family court to make changes or arrangements.
Spousal Support
It might be harder to meet spousal support responsibilities. A lot of the time, spousal support payments stop when the payer dies, unless the divorce deal or court order says otherwise. If the agreement or ruling says so, the surviving spouse may be able to get money from the estate of the deceased spouse to pay for things. Life insurance plans or other assets may be set up to pay for spousal support in some situations. But if no such provision exists, the surviving partner might not get any more money unless someone makes a claim against the estate.
Final Words
It can be hard to figure out what the legal effects of separation, divorce, and death are in Canada, especially when it comes to child support, spousal support, and the sharing of assets. When a couple gets divorced, many of their rights and duties stay the same. However, divorced couples usually have more restrictions because it cuts off many formal ties. It is important to get legal help in these cases to ensure your rights and obligations are properly taken care of.
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