If a lawsuit is started before a party dies the estate can often chose to continue that lawsuit. But when the surviving family members start suing each other after a spouse dies things are more complicated. That’s what happened in the recent is case of Stalzer Estate v. Stalzer, [2018] A.J. No. 315. The resulting judgment is a clinic on what family law causes of action survive death.
Short story: Husband dies. Husband’s estate and the Wife sue each other for everything they can think of.
So, can you bring a new action for these things after a spouse has died?
- Retroactive child support? No.
- Retroactive spousal support? Nope.
- Occupation rent under the Land Titles Act? Maybe, but the estate needs to be a co-owner of the land in question. That can only happen if the Husband and Wife were tenants in common.
- Occupation rent of under the common law – Yes, but you’ll probably lose.
The takeaway: if you are looking for any of these things, you better start your action before you or your spouse dies.
This is a great case outlining the fundamentals of the topics at issue. I am grateful for Justice D.C. Read for her excellently presented opinion and to Barb Cotton for sending me the case.
