The Devil is in the Drafting: Is an Estate Entitled to Spousal Support Payments?
The recent Alberta Court of Queen’s Bench decision in Marasse Estate (Re), 2017 ABQB 706 is yet another reminder that drafting legal documents must be done carefully and with a view to their long-term effect. The main issue in this case was whether the surviving ex-spouse was obligated to continue paying spousal support to his deceased ex-spouse’s estate.
Justice Mah found that, based on the wording of the parties’ specific Separation Agreement, the husband was obligated to continue making spousal support payments to the deceased former wife’s estate.
By way of background, as part of their separation, the former spouses entered into a Separation and Property Agreement. Both were represented by counsel. Both parties knew that the wife had been ill for several years. Under the Separation Agreement:
- The husband agreed to pay monthly spousal support of $3,000 for 5 years;
- The parties gave up their right to review or vary the entitlement, quantum and duration of spousal support even if there was a material change in circumstances of either party;
- The husband was required to secure payment of the support through an insurance policy;
- The agreement contained a relatively standard clause that it was binding upon and would enure to the benefit of the parties’ heirs, executors, administrators, successors and assigns
While the Separation Agreement dealt with the division of property should one spouse predecease the other, it was silent on how the spousal support payments would be treated if the wife died before all of the payments had been made.
The wife died about 8 months after signing the Separation Agreement. According to its terms, the husband was still responsible for 52 monthly payments, equivalent to $156,000. The wife’s daughter, who was her personal representative (and presumably a beneficiary), applied to the Court to enforce the Separation Agreement on behalf of her mother’s estate.
The husband sought to vary the agreement. He argued that with the wife’s death, she no longer had an economic need for support. The Court disagreed, finding that while contractual spousal support could reflect the theoretical bases of compensatory and non-compensatory spousal support, the parties did not have to adhere to those theoretical objectives when entering into separation agreements.
The husband also argued that spousal support was a personal right, which could not pass to an estate. However, Justice Mah distinguished cases where spousal support was ordered by the Court, versus those cases where the parties agreed to pay support in a contract. He considered the enurement clause, the non-reviewability clause and the comprehensive nature of the Separation Agreement to conclude that the Separation Agreement created a juristic reason to continue the support payments. There was no reason to vary the Separation Agreement under the test set out in Miglin v Miglin as applied in Alberta. The Court declared that the husband’s obligation continued notwithstanding the wife’s death.
In conclusion, individuals negotiating separation agreements should recognize the potential long-term effects of contractual spousal support payments on their estates. Carefully consider your intentions and ensure that your separation documents truly and clearly reflect those intentions.