On behalf of Gary Kirk of Kirk Montoute Dawson LLP posted in Family Law on Wednesday, November 14, 2018.
When a married couple divorces and assets are divvied up, chances are a former spouse may be eligible to some of the other’s pension fund. But what happens under family law in Canada if a couple is divorced and the former spouse dies while collecting some of those pension funds? Can the surviving spouse claim survivor benefits?
When a former spouse receives pension benefits from his or her former spouse, the law considers them to be transferred to the spouse and therefore can’t revert to the surviving former spouse upon death if the couple was formally divorced. If the couple was separated and not legally divorced, the surviving former spouse would likely be eligible for a survivor benefit. Those who were legally divorced and there is a child or children involved, the children would be entitled to 20 per cent of the deceased spouse’s pension benefit up to the age of 25, but only if the child is still in school.
In terms of a former surviving partner recouping pension funds, the deceased former spouse’s estate would likely be eligible for a supplementary death benefit equal to the greater contributions given to him or her along with interest. Another scenario would be that the surviving former spouse could receive pension payments of five years minus what the deceased spouse was already paid. But nothing is a given for a surviving former spouse since a supplementary death benefit would go to the beneficiary of the estate, which could be a former spouse or children.
When one former spouse dies, nothing automatically goes to the other surviving former spouse. The rules can seem fuzzy. The same scenario applies to Canada Pension Plan funds.
A family law lawyer would be able to enlighten his or her clients on these sorts of issues pertaining to former spouses and inheritance issues. It is better to be clear about the law and how it affects individuals circumstances. Assuming is not a wise idea.
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