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Can I Be Entitled To Disability Benefits From My Disabled Ex-Spouse?

While disability benefits are there to assist the disabled victim with the cost of care for living with disability, such benefits may also be entitled to their ex-spouse in case of a divorce.

You may also get such benefits if your ex-spouse died and was entitled to Canada Pension Plan (CPP). The law allows spouses to share such income, also called credit splitting. This is possible even if only one spouse made CPP contributions.

In the process of separation or divorce, a recipient of disability benefits, has a few things to consider.

Can I Qualify To Get CPP Benefits From My Ex-Spouse?

If you separated from your spouse and contemplating divorce in Ontario, you may have agreed on how to divide your assets or debts when preparing a separation agreement. 

One common misconception is that when spouses separate, they are entitled to an equal share of assets. According to the Ontario Family Law Act, any division of assets has to be done through the process of equalization of net family property, which is subject to many exceptions that make division of disability benefits complicated.

However, disability and insurance benefits are not considered as marital property for division, But, when such funds are deposited into a joint account during the time of marriage, they might end up being divided equally. 

Generally speaking, when a spouse receives disability benefits because of their physical or mental disability, whatever benefits they receive are considered income. However, when such benefits are based on employee contribution over the years of service, this is regarded as a shareable property. Such issues are complicated and thus need one to use their family lawyer to offer advice on whether to treat disability benefits as shared property or income.

Splitting Canada Pension Plan benefits depend on whether you were in a common relationship marriage or you were legally married. After divorce, you only are entitled to receive a credit split if:

  • You and your ex-spouse lived together for at least 12 consecutive months. This is possible because one requirement for divorce is to be living apart for one year or even more.
  • You have to notify service Canada about your plans and give out the necessary documents. There is no time limit to apply for these benefits, not unless your ex-spouse dies. In this case, the application of such benefits should be made 36 months from the date of death.

When there are issues about credit split, you have a chance to appeal. You can do this with the help of a lawyer.

For a spouse to qualify for CPP disability benefits, they must:

  • Be under 65 years of age
  • Developed a physical or a mental disability that prevents them from performing any gainful work
  • Their disability is deemed to be long term and may result in o death
  • They contributed enough to a CPP.

Getting The Benefits Of Your Ex-Spouse Dies

In case your ex-spouse dies, you should inform the Pension Centre with the required documents showing a separation agreement or a divorce certificate.

For division of benefits, you have to provide a court order or agreement signed indicating that you agree to the division of benefits. Either you or your ex-spouse may apply for such benefits. The issue may arise if you live with someone else, but you may still be entitled to a share of such benefits. 

If you were separated at the time of death but had not yet divorced, you will be entitled to the benefits. However, you will only get such benefits after divorce if you had a signed an agreement that there will be a division of benefits in case of death. Nonetheless, you will only be entitled to get a portion of the benefits regarding what is not covered under the division. 

If you are divorced, and your ex-spouse dies and there was no agreement on division of benefits, you may not be entitled to ask for a CPP credit split.

There are many complicated issues regarding the division of CPP benefits when a spouse separates or is divorced. It might be less easy to handle the situation if you agree on separation agreement on how such division may be carried out. 

If you’re in a fix about disability benefits and wondering how to deal with the issue, you can consider seeking legal counsel.

If you are separated or contemplating divorce, you may choose to agree on what will happen to your spouse’s CPP benefits.

If you have disability division issues, it’s recommended to have a family lawyer give practical tips on how to handle the issues and help you prepare for your case, to protect your rights to a spousal CPP. An experienced lawyer will guide you on the time limits for a CPP credit split depending on your situation.

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by Chamsi Pirson

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