Manon from Chomedy is presently receiving spousal support for her own benefit as well as a child support for her minor children following her divorce. She has asked if the said spousal and child support will continue in the eventuality of her ex-husband’s death.
The survival of the obligation to provide support is an exception to the principal of our testamentary freedom (to leave our property by our Last Will and Testament to whomever we want) and is prescribed by section 684 and following of the Civil Code of Québec. In fact, the survival of the obligation is a legal procedure open to every creditor of support, and/or to a former spouse who is already receiving support payments for his or her own benefit.
This request must be submitted within six months of the death of the debtor. The survival of the obligation to provide support is intended as a financial contribution to the creditor of support from the estate via a lump sum, that is payable either in one payment or in several installments.
How Long Does the Obligation to Provide Alimony and/or Spousal Support Last?
The survival of the obligation to pay support to the former spouse, who is already receiving a spousal support, is equal to twelve months of support or, at most, 10% of the net value of the estate.
Regarding the descendants (children) to whom child support would be payable, their rights, and how to establish such support, are described in section 688 of the Civil Code of Québec. Of course, any person pursuing such a claim might have to obtain more information from the estate in order to establish the contribution, including the details of the assets and the liabilities of the estate.
To establish the amount of the contribution, the courts must consider the needs of the creditors and their level of autonomy. As each case is an individual case, it is highly recommended to meet with your lawyer to obtain a professional opinion.
Gianina Fuschini, Attorney-at-Law
Alepin Gauthier avocats inc.