Quick answer: Yes. In British Columbia, a family property-division claim under the Family Law Act survives the death of a separated spouse. As confirmed in Weaver Estate v. Weaver, the personal representative of the deceased’s estate can start or continue the claim against the surviving spouse under section 150 of the Wills, Estates and Succession Act, provided it is brought within the Family Law Act‘s two-year limitation period.
BC’s Family Law Act provides that, upon separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt. What happens if a spouse dies after separation but before family property issues have been settled? Does the deceased spouse’s claim for division of family property die with them? That was the question for the court in Weaver Estate v. Weaver, 2021 BCSC 881.
Property division claim started after death of one spouse
Albert and Lani Weaver married in 1993 and separated in 2005. Lani died in July 2020. There was no property division agreement or order in place between Albert and Lani at the time of her death. In November 2020 the administrator of Lani’s estate issued a notice of family claim (“NOFC”) against Albert, seeking equal division of family property and family debt under the Family Law Act, S.B.C. 2011, c. 25 (“FLA”). Included in the NOFC were claims for an interest in three real properties located in Delta, BC, Washington State, USA, and Hawaii, USA.
Surviving spouse applies to strike Family Law Act claim
In February 2021, the surviving spouse (Albert) brought an application to strike the FLA claim brought against him. Albert’s position was that the administrator of Lani’s estate could not bring a claim under the FLA because Lani was deceased at the time the claim was brought. Albert relied on section 150 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), which states that certain types of claims are “annulled” by the death of the person with the claim. Albert argued that upon Lani’s death, she no longer qualified as a “spouse” under the FLA, and so the FLA claim was a “nullity.” The BC court rejected Albert’s argument and dismissed his application to strike the FLA claim brought against him by the personal representative of Lani’s estate. Her estate’s personal representative had standing to bring a claim after her death. Albert was ordered to pay costs.
Right to property division survives death of spouse
The Court in Weaver Estate examined the interplay between the FLA and WESA. Certain types of claims are not annulled by reason of a person’s death. BC law clearly preserves causes of action for property division notwithstanding the death of one or both separated spouses. Further, s. 150(2) of WESA and the Family Rules clearly state that it is not necessary that the claim have already been commenced in order to survive death. On proceedings by and against an estate, s. 150(2) of WESA states:
…. the personal representative of a deceased person may commence or continue a proceeding the deceased person could have commenced or continued, with the same rights and remedies to which the deceased person would have been entitled, if living.
It is only necessary that the deceased have a cause of action for the claim to survive. Had she been alive, Lani would have been able to start a proceeding for property division under the FLA at the time the NOFC was filed. Following Albert’s logic, any right under the FLA held only by a spouse, including a right to family property, but not yet acted upon, would terminate on the death of the spouse. That would create a gap which WESA s. 150 was clearly intended to fill.
Bottom line on BC property division claims after death of one spouse
The combined effect of BC’s Family Law Act and the Wills, Estates and Succession Act is that where a spouse dies after separation, an action can be commenced by the estate of the deceased against the surviving spouse, or vice versa. As long as the claim is not statute barred by s.198 of the FLA, the claim survives the death of one or both of the separated spouses. The personal representative of the estate may commence the FLA proceeding with respect to property division with the same rights and remedies to which the deceased person would have been entitled, if living.
The limitation clock: why timing decides these claims
A surviving claim is not the same as an open-ended one. Section 198 of the Family Law Act puts a hard deadline on property-division proceedings, and death does not pause it or hand the estate a fresh start. The estate steps into the shoes of the deceased spouse, limitation period and all.
For married spouses, the clock generally runs for two years from the date of the order granting a divorce or an annulment. For unmarried spouses, it runs for two years from the date they separated. In Weaver, the deceased had separated years earlier but the couple were still married, so the estate’s claim was not statute-barred. Change those facts and the answer changes with them. A separated common-law spouse who dies more than two years after separation may leave an estate with no property claim left to bring.
The lesson for a personal representative is unforgiving: work out the separation and divorce dates early, and calendar the deadline before doing anything else. Certain family dispute resolution steps can affect how the period is counted, which is another reason to get advice quickly rather than assume there is time.
Separation, death, and your estate rights under WESA
Here is the point most people miss. The FLA property claim surviving death is only half the picture. Separation also changes what a surviving spouse can claim from the estate under the Wills, Estates and Succession Act, and the two regimes can pull in opposite directions.
Under section 2 of WESA, two people can stop being “spouses” for the purposes of the Act when they separate. For a married couple, that happens when an event occurs that gives rise to an interest in family property under the Family Law Act; for an unmarried couple, when one or both of them terminate the relationship. That matters because WESA‘s spousal protections turn on being a spouse. A person who no longer qualifies may lose their entitlement on an intestacy under sections 20 to 25 and their standing to bring a wills variation claim under section 60.
So a separated surviving spouse can find themselves in a strange position: still exposed to (or able to pursue) an FLA property-division claim, yet cut out of the estate they might once have inherited from. Whether you are the surviving spouse or the estate, you need to look at both statutes together. Answering one question in isolation gives the wrong strategy.
What a personal representative or surviving spouse should do
Pin down the dates of marriage, separation, and any divorce, and confirm whether a property agreement or order was ever made. Identify and preserve records for the family property, including out-of-province assets, because valuation and tracing still have to be done. Then get advice on both the FLA claim and the *WESA* position before the limitation period narrows your options.
Frequently asked questions
Does a BC family law property claim die with the spouse?
No. A claim to divide family property under the Family Law Act survives the death of a separated spouse. As Weaver Estate v. Weaver confirmed, the personal representative of the deceased’s estate may commence or continue the claim under section 150 of the Wills, Estates and Succession Act, with the same rights and remedies the deceased would have had if living.
Does the family property claim have to be started before the spouse dies?
No. Section 150 of the Wills, Estates and Succession Act allows a personal representative to commence a proceeding the deceased could have brought, not only to continue one already filed. It is enough that the deceased had a cause of action at the time of death. In Weaver, the estate started the claim months after the spouse had died.
Is there a deadline to bring the claim?
Yes. Section 198 of the Family Law Act sets a two-year limitation period. For married spouses it generally runs from the date of the divorce or annulment order; for unmarried spouses it runs from the date of separation. Death does not reset this clock, so an estate has to act within the time the deceased spouse had left.
Does a separated spouse still inherit under the estate?
Not necessarily. Under section 2 of the Wills, Estates and Succession Act, people can stop being spouses when they separate. A person who is no longer a spouse may lose their share on an intestacy under sections 20 to 25 and their standing to bring a wills variation claim under section 60, even though the Family Law Act property claim can still survive death.
What happens to out-of-province property in the claim?
The Family Law Act claim can still cover the value of family property, but assets located in other provinces or countries raise added questions about which court can make orders and how the interest is enforced. In Weaver, the estate’s claim included real property in Washington State and Hawaii. These files need advice on both the BC claim and the foreign asset.
Disclaimer: This article is general legal information about British Columbia law, not legal advice for any particular situation. Reading it does not create a solicitor-client relationship. BC law and procedure change, and the rules that apply to any specific case depend on facts not covered here. For advice on your own circumstances, speak with a qualified British Columbia family or estate litigation lawyer directly.