Does Spousal Support Terminate Upon Death?

The Courts in Alberta have been clear that spousal support terminates upon the death of the payor or the payee, as spousal support can only be paid or received by a spouse as defined in the Divorce Act.

Specific comments from the Court are that spousal support is personal and cannot be maintained after the death of one of the spouses, absent an agreement or Court Order binding the support on the estate.

The mention of agreements or Court Orders is important as there are options available to secure spousal support and make it binding upon the Estate.

The common practice is to clearly set out that the spousal support is binding upon the Estate with clear terms as to length and duration of the support in a Separation Agreement that is also placed into a Court Order or Judgment.

Another option is to secure spousal support in the Separation Agreement by way of a specific clause securing the support with a life insurance policy. This method falls outside of the Estate and is automatically triggered upon the death of the payor.

While spousal support does not survive the death of the payor, partner support is a different story.

Partner support is for Adult Interdependent Partners (often referred to as common-law partners) who were never married, which falls under the Family Law Act. S.80 of the Family Law Act sets out that unless stated otherwise, support orders and agreements are binding on the Estate. This is the exact opposite approach to the one the Court takes when parties are married.

The principle of spousal support terminating upon the death of a spouse is upheld by Justice Lema in his recent decision in McCulloch v McCulloch, 2025 ABKB 148 (CanLII). This decision provides an in-depth summary of the law surrounding this specific issue.

Our team at Hayher Lee LLP is available to assist you in navigating these complex issues during this challenging time.