Does “Death Do Us Part”? Separating the Living from the Dead in Family Law and Estate Litigation


A recent decision from the Court of Appeal for British Columbia outlines the rights and obligations between spouses in life and after death, and how these shift on separation.

In 2013 and 2014 respectively, the Family Law Act [FLA] and the Wills, Estates and Succession Act [WESA] came into force in British Columbia. Under s. 81 of the FLA, on separation, each spouse has a right to an undivided half interest in family property. Under s. 60 of the WESA, a spouse must make adequate provision from his or her estate for the proper maintenance and support of the surviving spouse. If he or she fails to do so, the survivor may bring a claim to vary the will of the deceased.

In Gibbons v. Livingston, 2018 BCCA 433, the Court clarified how these complementary statutes define the rights and remedies available to spouses.

Separated by death?

Ms. Gibbons and Mr. Livingston were in a marriage-like relationship for approximately 12 years before Mr. Livingston’s death. Despite their relationship, Mr. Livingston left his estate to his son. Ms. Gibbons brought a claim under s. 60 of the WESA for a variation of his Will in her favour.

The parties reached a settlement, but Ms. Gibbons failed to comply with its terms. She advanced a claim for division of family property under the FLA, arguing that she and Mr. Livingston had “separated” by reason of his death.[1] The Court of Appeal rejected this, holding that “separation” under the FLA does not include the death of a spouse, and summarized the interplay between the FLA and the WESA.

Which statute applies?

Where a spouse dies after separation but before settlement of the parties’ rights and obligations under the FLA, the surviving spouse can commence or continue an action against the estate of the deceased. Where spouses have not separated, however, the division of family property is addressed in the WESA. The FLA and the WESA are therefore complementary: the Divorce Act and the FLA describe legal obligations during the joint lives of the spouses, and the WESA determines what testamentary disposition of matrimonial assets is permissible in light of those legal obligations.

Here, because Ms. Gibbons and Mr. Livingston had not separated before his death, she had variation rights under the WESA, but did not have a claim under the FLA.

“Legal obligations” to a spouse on death

The Court of Appeal also commented on the relevance of family property legislation to wills variation claims by spouses. A will-maker’s legal obligations toward his or her spouse are found, in part, in family law legislation. Assessing whether a spouse has met these obligations involves a notional assessment of what the spouse would have received on separation, such that entitlement of property and support under the FLA is considered.

Our Court of Appeal has cautioned, however, that wills variation claims should not become a proxy for divorce proceedings. The analysis of the legal obligation owed to a surviving spouse need not be a detailed or exact one given the different context between a marriage breakdown, where both spouses have continuing needs and obligations, and the death of a spouse.[2] In Gibbons v. Livingston, both the majority and the concurrence affirmed this analysis: the rights of a spouse under the FLA are a reference point but wills variation proceedings are distinct from family property claims.

A call for legislative change?

Justice Smith wrote separate concurring reasons on a “troubling aspect” of the appeal. She agreed that “separation” under the FLA does not include the death of a spouse, such that here, Ms. Gibbons’ only recourse was a claim against Mr. Livingston’s estate under s. 60 of WESA. She observed, however, that the family property regime in British Columbia is unique. In other provinces, a surviving spouse can claim for division of family property on the death of his or her spouse. This gives a spouse the opportunity to claim his or her share of family property before calculating the value of the estate. Absent a legislative change, however, the rights of surviving spouses in BC remain subject to the WESA and the legal and moral obligations owed in the context of wills variation proceedings, not the FLA.

Gibbons v. Livingston summarizes the harmonious operation of the FLA and the WESA in defining the rights and remedies of spouses. For assistance with your estates or family law matters, please contact a representative of Clark Wilson LLP’s Estates & Trusts or Family Law Practice Groups.

[1] Ms. Livingston also argued that the settlement agreement should be set aside based on her emotional state at the time of its execution.

[2] Kish v. Sobchak Estate, 2016 BCCA 65