Are you entitled to the insurance claim if your spouse dies in a car accident?

Last month, writer Mark Pupo gave readers an emotional and thorough look into the staggering number of pedestrian deaths that happen in Toronto every day. In his story for Toronto Life, Pupo recounts the experience of Maria Dorsey whose spouse, Jack Miehm, was hit by a car and died while trying to cross St. Clair Ave. After the accident, Pupo writes, “The police encouraged her to call her insurance provider to report that Jack had been in a traffic accident, as she’d be entitled to the claim.”

Typically, if you get into a car accident and you survive, you’re entitled to what’s called “accident benefits,” which can include medical benefits, income replacement benefits, caregiver benefits, and non-earner benefits. But what if you don’t survive the accident? 

If your spouse is killed in a motor vehicle accident — regardless of whether or not they’re deemed at fault — you’re entitled to a death and funeral benefit from their insurance company, so long as you are legally married or have been living together in a conjugal relationship for more than three years (also known as being common law married).

Death and funeral benefit

If you lose your spouse in a motor vehicle accident, you have seven days to contact your auto insurance company (or as soon as is practically possible) and let them know what happened.

“The sooner you contact that person’s insurance company, the easier it will be,” says Melanie Henriques, a licensed paralegal at Samfiru Tumarkin LLP, an employment law firm based in Toronto.

What you’ll be applying for is a death and funeral benefit. This falls under what’s called the Statutory Accident Benefits Schedule — also known as SABS, which is a regulation under the Ontario Insurance Act.

“If you’re the spouse, you get a lump sum of $25,000 and each dependent would get $10,000,” explains Henriques. “If there is no spouse, then that $25,000 gets distributed equally between the dependents.” 

The compensation doesn’t change based on the type of accident it was, either. So, whether your spouse was a pedestrian killed by a vehicle, or a driver killed by another vehicle, the benefit amount is the same.

If you’re the spouse, you get a lump sum of $25,000 and each dependent would get $10,000

It doesn’t matter who your insurance company is, either. The benefit is the same across all insurance providers in Ontario. “The only time it would be more,” Henriques says, “is if the insured individual had purchased optional benefits when they got their policy.”

On top of the death benefit, you’re also entitled to up to $6,000 for funeral expenses. “It’s a reimbursement more so than a payment,” says Henriques. “In order to claim it, you need to keep all out-of-pocket receipts for funeral-related expenses.”

In order to get the benefit, you’ll need to provide the insurer with some information, including things like the motor vehicle accident report, the coroner’s report, and the death certificate.

Once they’ve processed the application, they have 180 days within the date of the accident to pay you.

Options for launching a lawsuit

On top of receiving your spouse’s accident benefits, you might have the potential to launch a lawsuit against the other driver — but only if your spouse was deemed not at fault in the accident.

If that’s the case, and your spouse was not at fault, then you can file a lawsuit against the other driver under the Family Law Act. “That’s where you could get more money for a loss of guidance, care and companionship,” explains Henriques. “That’s different than what the SABS gets you.”

However, they’re “trickier claims to make,” says Henriques, and yield fairly minimal awards, with compensation ranging anywhere from $2,500 to $30,000. You’ll have to prove what kind of relationship you had with that person, how involved they were in your life, and in what ways you depended on them. But if you can prove that the person was a substantial provider in the home, you could claim income loss.

What if you don’t have auto insurance?

Of course, not everyone has auto insurance. So, what happens then?

“If you don’t have insurance or have access to insurance through a spouse, someone you’re dependent on, or a policy that lists you as a driver — and the other driver doesn't have insurance — then you can apply to the Ontario Motor Vehicle Accident Claims Fund (MVACF),” says Henriques.

The MVACF would then pay out the death and funeral benefits on behalf of your spouse. The fund doesn’t, however, cover any potential lawsuits. It’s also, Henriques says, used a last resort. “In eight years, I’ve never had to go through that fund,” she says. “Very rarely is it accessed because typically somebody has some kind of insurance that they have access to.”

In Ontario’s no-fault insurance system, we like to draw on a spiderweb of potential insurance before having to go to the other driver’s insurance company for compensation. For example, let’s say you’re struck (not fatally) by a vehicle while crossing the street and neither you nor the driver of that vehicle has auto insurance but you happen to live with someone who does. You might be able to go through your roommate’s insurance to collect accident benefits.

“It always very much depends,” says Henriques. “They have to look at the actual relationship, but it’s possible.”

But in the case of a spouse being fatally struck by a vehicle, if neither you nor your spouse has auto insurance and you’re confused about how to collect the death and funeral benefit, it’s a good idea to contact a lawyer or paralegal who handles motor vehicle accident claims and can help you navigate the process.

“For the most part it’s fairly straightforward,” says Henriques. “But some people don’t know how it works. And it can get a bit messy, especially if there’s an ex-spouse involved. So it’s a good idea to speak with a professional.”