Epiq Systems, Inc.

Mills & Mills LLP: Kristen Woods

Spousal support can survive after death of the recipient spouse


In Marasse Estate (Re), the Court decided on the issue of whether the estate of the deceased was entitled to continue receiving spousal support under a separation agreement. The separation agreement required the defendant to pay $3,000 per month in spousal support for 60 months. After 8 months, the deceased passed. The estate of the deceased brought an action to recover the remaining spousal support payments.

The living spouse argued that the estate should not be entitled to ongoing spousal support because it is for the spouse’s benefit and when the spouse dies, the support dies with the spouse. Although there is case law that supports this, the Court held there was a distinction between a court order for spousal support and a contractual agreement to provide spousal support. A contract is enforceable after death.

The Decision

The Court held the agreement itself was a juristic reason for the spousal support to continue. The Court found a number of reasons why the estate of the deceased spouse was entitled to continuation of the spousal support payments:

  1. The agreement included an enurement clause.
  2. The agreement had a non-reviewability clause.
  3. The agreement was comprehensive; it was for a finite sum for a limited duration and it was negotiated in full context of the financial issues.
  4. The Court held the premise that the spousal support should stop because it is for the benefit of the deceased spouse did not hold. If the deceased spouse won the lottery, the spousal support payments would continue; the support payments were not contingent on the deceased spouse’s need.
  5. There is no ambiguity in the agreement. The agreement contemplated the possibility of death and the fact that it was silent on what would happen on the deceased’s death suggests the parties turned their minds to it.
  6. Lastly, the Court looked at the relevant circumstances and both parties knew of the deceased’s illness at the time of the agreement.

The Court then went through the Miglin test and found that both parties intended the agreement to be a full and final resolution for issues arising from their marriage. Both parties had legal counsel and entered into the agreement freely and voluntarily. Lastly, the parties had contemplated death of the parties in the agreement, and thus there were no new circumstances that were not anticipated. The Court concluded it should not vary the agreement and the spousal support payments were to continue according to the agreement.

The family lawyers at Mills & Mills LLP work to find solutions tailored to the needs of their clients and their clients’ families. We always prefer to minimize costs and preserve relationships by resolving matters through negotiation or mediation, but if court is unavoidable we will vigorously defend our clients’ interests through litigation. For more information on the services provided by our experienced family law lawyers, please contact Mills & Mills LLP at 416­-863-0125 or send us an email.


About the Author 


To Read More Mills & Mills LLP Posts Click Here
Lawyer Directory
BPFG: NEW AD TO ROTAE MONTHLY WITH BICOToronto Lawyers AssociationMKD InternationalFeldstein Family LawLegal Print & Copy Inc.Steve Rastin - 300x125Benson Percival Brown - Flat Box Ad Unit - 300x125Engel DUI