Is it Separation if it’s because of health?

Reasons for judgement were released last month in the case of Berg v. Murphy Estate.

In this case, the deceased (who died in late 2010) and the Plaintiff had had a fifteen-year common law relationship. The couple entered a Cohabitation Agreement in 2006 that provided for the surviving spouse, who received $200,000 from the sale of their Salmon Arm house (owned as tenants in common) as long as the couple had not separated.

The deceased’s family argued that they did separate. When the deceased was diagnosed with lung cancer, the Plaintiff was diagnosed with early Alzheimer’s.

While in the hospital, the deceased transferred his portion of the property to a son, and wrote a new Will in which the Plaintiff was disinherited.

While the deceased was in palliative care, shortly before his death, the Plaintiff obviously was not “with him.” She visited the hospital daily, however.

The family’s argument did not stand. The Court held that the couple never did separate, and instead found that the couple remained devoted to each other. It was only the deceased’s deteriorating health that caused the (physical) separation.

Though the Plaintiff was unable to be with her spouse, neither person displayed any intention to actually “separate” in a matrimonial sense. Therefore, the Cohabitation Agreement applied, and the transfer by the deceased was set aside.

The Court ordered that the Plaintiff be given the $200,000, which amounted to about 70% of the net sale proceeds of their home.

This ad ran in the Richmond Review on May 2, 2014.