I am often asked what effect child and/or spousal support obligations have on an estate.  Do they cease as a result of the payor’s death or does the payor’s estate owe an obligation to continue the payments?

In Ontario, the law is clear as to an estate’s obligation to continue making support payments.  According to section 34(4) of the Family Law Act, “an order for support binds the estate of the person having the support obligations unless the order provides otherwise”.blog photo - seg funds

The rationale is explained by the leading decision of Linton v. Linton where the Ontario Court of Appeal held that as long as no contrary order is made, a support order is binding on the payor’s estate.  Specifically, “…the practice of the family law bar…in which support is an issue…is to provide for the continued payment of support by the estate of the payer, or the payment of a capital sum, usually through life insurance, as a substitute”.  Otherwise, the Court of Appeal states that if a support order is not binding on an estate, the needs of the survivor remain intact without any payments to satisfy them.

In the context of the Linton decision, the Court of Appeal states that the surviving spouse has every reason to expect that she is to be looked after in a financial way in the event her husband predeceased.

So what’s the bottom line?  When seeking an order or negotiating in a separation agreement for the payment of child and/or spousal support, parties must be explicit as to whether support continues post death and whether that obligation is secured by life insurance.

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Noah Weisberg