Survival of the Family Maintenance Obligation

Responsibility: Department of Justice

If the deceased person was paying you spousal, civil union or child support, you can ask the estate to make a financial contribution.

The death of the deceased does not cancel the obligation to pay support to family members. Since each situation is different, you should consult a legal advisor.

The obligation to provide support is a reciprocal obligation whereby one person can claim support from another in order to ensure his or her subsistence, notably for :

  • food
  • shelter
  • heating
  • clothing
  • medical expenses.

This person may be:

  • a minor or adult child;
  • a parent
  • a former married or civil union spouse.

The father and mother have the obligation to provide their children with the material means to satisfy their essential needs, regardless of the circumstances of the filiation. Children have the same duties towards their parents.

The benefit to cover the maintenance needs is granted by the court taking into account:

  • the circumstances in which the parties find themselves
  • their needs and faculties;
  • the time required for the creditor to become sufficiently independent.

This benefit is paid in the form of a pension. The court may exceptionally replace or supplement this support with a lump sum payable in cash or in instalments. The judgment granting support is subject to review whenever circumstances change.

MINOR CHILD

The recourse for support of a minor child may be exercised, depending on the circumstances, by :

  • the holder of parental authority;
  • the guardian of the minor child
  • any person who has custody of the child.

CHILDREN OF AGE

A child of full age may choose to sue one or more of his parents. He may sue his father, his mother or his own children, if they are able to meet this obligation. The court then sets the amount of support to be paid by each of the debtors sued or implicated.

The court takes into consideration the seriousness of the child's efforts to become independent. The means and other commitments of the parents, such as other children, are also taken into account.

Note: Since 1996, grandparents no longer have a support obligation towards their grandchildren.

On the other hand, a parent who partially supports a child of full age who is unable to support himself or herself may exercise a support claim for the child, unless the child objects.

FORMER MARRIED OR CIVIL UNION SPOUSE

In many cases, alimony to a former married or civil union spouse is a temporary support granted to the person in need to allow him/her to reorganize his/her life. Each case is analyzed individually.

Note: There is no legal obligation to provide support for former common-law spouses. However, they may provide for the payment of support in the event of a break-up in a cohabitation contract or, in the absence of a cohabitation contract, agree to pay support in the context of a break-up agreement.

SURVIVAL OF SUPPORT OBLIGATION AFTER DEATH

In the event of the death of the person paying support, the creditor may, under certain conditions and if he or she requests it within 6 months of the death, obtain a financial contribution from the estate. The creditor can receive the lesser of these 2 values:

  • 12 months (former married or civil union spouse) or 6 months (other creditors) of support;
  • 10% of the value of the estate.

Any support creditor who did not receive support but was entitled to it may also apply to the estate.

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