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Can terms in a pre-nuptial agreement work to preclude a spouse from sharing in the estate of their deceased spouse?
What about where spouses separate, sign a separation agreement with waiver terms, then reconcile and are living as spouses when one of them dies but they never revisit the separation agreement?
Consider terms such as the following:
- The parties renounce all rights each might have in or to the administration of each other’s estate under any law of British Columbia or any Province or Territory of Canada, or any country in which any part of the estate of the other may be situated….
Or:
- If the parties cohabit for a continuous period of more that 90 days, the terms of this agreement will remain in effect unless the parties revoke it in writing.
Terms that waive an interest in each other’s estates or provide that the terms of a separation agreement continue despite reconciliation may preclude entitlement unless the agreement is revoked or varied to delete those terms.
Agreements are generally varied in the same way they were originally executed – in writing, with signatures witnessed.
In the recent case of Ramadan v Coupal, 2025 BCSC 1194, Madam Justice Chan considered whether property agreements the parties had executed early in their relationship precluded the common-law wife from a larger share in her dead spouse’s estate.
Akile Ramadan (“Akile”) and Valere Raoul Coupal (“Val”) were common law spouses for around 13 years. Val was married when they met and he had children from that marriage. He had built up a successful crane business during the marriage that he wanted to leave to his sons. Val and Akile had no common children.
Val and Akile signed a series of agreements from 2010 to 2016. Those agreements had the effect of greatly limiting Akile’s entitlement to Val’s assets.
Val also put the bulk of his assets into an alter ego trust to ensure those assets would go to his children when he died. He set up a separate trust for Akile, however, what it provided was fairly modest in relation to the totality of Val’s assets, which were in the millions of dollars.
One of the agreements the couple executed in 2016 set out that Akile would have no trust claim against Val’s property other than through the trust that was set up specifically for her. All of the agreements referred to Akile as Val’s “Friend”, not his spouse.
In his will, Val left Akile a Lexus car and he left the remaining residue to his children. Again, Akile was referred to as his “Friend”.
After Val died, Akile applied to vary his will. She claimed she did not understand the nature of the agreements or that in signing them, she was waiving her right to make a claim to vary Val’s will.
While Justice Chan had no difficulty finding that Akile and Val were spouses, she did not find Akile to be a credible witness. The evidence showed that Akile had received independent legal advice prior to signing the agreements or was advised to do so.
Justice Chan reviewed the relevant law on wills variation. Section 60 of the Wills, Estates and Succession Act states:
- Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children (at para. 57).
Justice Chan noted that “wills variation language confers a broad discretion on the court” (at para. 58). Further:
- The terms “adequate, just and equitable” must be measured using contemporary social norms, consisting of both legal and moral obligations. Legal obligations are the legal responsibilities of the testator during his or her lifetime, as reflected in the Divorce Act … family property legislation and the law of constructive trust. … Moral obligations are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards (at para. 59).
At paragraph 78 of the decision, Justice Chan confirmed that agreements are not an automatic bar to wills variation relief: “Cohabitation, marriage or separation agreements that preclude wills variation claims are not an automatic bar; instead, they are but one factor to be considered in weighing the merits of the moral claim…”. However, Justice Chan declined to set aside the property agreements Akile and Val had signed. She found that Val had fulfilled his legal obligations to Akile (at para. 98), and that his moral obligations were reduced by the agreements (at para. 104).
Akile did get a small adjustment because Justice Chan found that circumstances subsequent to the signing of one of the agreements rendered it unfair. Thus, Val’s will was varied to give Akile an additional $300,000 – but that was not nearly as much as she had sought. Whether or not Akile should have signed the agreements, or negotiated different terms, is another matter. But if a court finds an agreement to be valid, it will likely be upheld.
Bottom line: Revisit pre-nuptial agreements. This is critical if your circumstances and/or intentions concerning your entitlement to share in your spouse’s estate changes.
For the same reason, if you reconcile with your spouse, revisit your separation agreement to avoid any unwanted consequences.
Above all, do not throw your agreement into a drawer and forget about it until it is too late to change it.
Estate Planning and LitigationThe estate planning and litigation practice group at LK Law is equipped with the knowledge and experience to help you navigate these complex issues. Contact us today to book an initial consultation.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
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