A closer look at the Report on Pension Division: Death of a spouse

15 April 2021

By Kevin Zakreski

This post is part of a series highlighting key recommendations in the Report on Pension Division: A Review of Part 6 of the Family Law Act. For other posts in the series click here.

Brief description of the issue

Even though general provisions of family law and wills-and-estates law address the powers of a personal representative in the division of family property (including pensions), there might be uncertainty about the application of those principles to a specific scenario involving the death of a spouse after separation but before becoming a limited member and before the pension commences. Should part 6 be amended to directly address this scenario and confirm the power of the personal representative to act?

Discussion of options for reform

The main advantage of amending part 6 to address this scenario is that it would bring some added clarity to the law. An amendment wouldn’t change part 6 so much as shine a light on an emerging legal issue that may cause confusion.

The downside of an amendment is that it shouldn’t be necessary. General provisions in the Wills, Estates and Succession Act and the Family Law Act should cover this scenario, as it doesn’t appear that their application has been excluded. In particular, there may be some support in the case law under the previous act for a personal representative’s power to file the forms necessary for a spouse to become a limited member. (One case, in particular, dealt with the inverse of this scenario, holding that a limited member may file the relevant forms even after the member’s death.) But it shouldn’t be necessary to specifically enable a power that is stated in general terms, even if that power extends to negotiating an agreement or obtaining a court order.

The committee’s recommendation for reform

The committee was of the view that the current law likely gives personal representatives the power to act in the scenario. But it was concerned about whether this point is widely appreciated. The committee saw some value in amending part 6 to illuminate this power. Such an amendment would make the law clearer and more certain.

The committee’s proposal on this issue received unanimous support in the public consultation.

The committee recommends:

Part 6 of the Family Law Act should be amended to clarify that, if a spouse dies before a member’s pension commences and before being designated a limited member, then the personal representative of the deceased spouse may take all steps necessary to designate the deceased spouse as a limited member of the plan.

For more information, visit the Pension Division Review Project webpage or read the Report on Pension Division: A Review of Part 6 of the Family Law Act.

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