No Will in BC: How Is the Estate Split With a Spouse and Children?

When someone dies in British Columbia without a will, the law decides who receives the estate. In a blended family, that can be stressful: a surviving spouse may be living in the home while some of the children are not the spouse's own.

This article explains how the Wills, Estates and Succession Act (WESA) generally divides an estate between a spouse and children from a previous relationship. Every family is different, so a lawyer can confirm how the rules apply to your situation.

This article covers the law of British Columbia.

Who counts as a spouse

Two people are spouses if both were alive immediately before the relevant time and they were married to each other, or had lived in a marriage-like relationship for at least 2 years. The relevant time is generally the date of death of one of them.

For an unmarried partner, the 2-year requirement matters. The Act sets no particular document as proof, so the relationship is shown by evidence.

• Married spouses stop being spouses if an event happens that gives rise to an interest in family property under the Family Law Act, such as separation.
• Partners in a marriage-like relationship stop being spouses when one or both of them end the relationship.
• Spouses are not treated as separated if, within one year after separating, they resume living together primarily to reconcile and live together for periods totalling at least 90 days.
• If more than one person qualifies as the deceased's spouse, they share the spousal share in the portions they agree on, and the court decides if they cannot agree.

How the estate is divided with a spouse and children

If the deceased left a spouse and no surviving descendants, the whole intestate estate goes to the spouse. With descendants, the spouse takes a preferential share first, and also takes the household furnishings.

The size of that preferential share depends on whose children they are. The amounts below may be raised by regulation, so check BC Laws for any greater prescribed amount before relying on a figure.

After the preferential share, the rest of the intestate estate is divided equally between the spouse and the descendants. If the net intestate estate is worth less than the spouse's preferential share, the spouse takes the whole estate and the descendants take nothing.

How the children's half is shared

The descendants' half is divided into equal shares, with one share for each surviving descendant and one for each deceased descendant who left descendants, counted in the nearest generation that has a survivor. Adult children share equally, with no preference for age.

If a child died before the deceased, that child's share is divided in the same way among that child's own descendants, so grandchildren take their parent's share.

• Survivorship: a person who does not survive the deceased by 5 days, or a longer period set by an instrument, is treated as having died first, which can change who takes.
• A child conceived before the death but born afterward inherits as if born in the deceased's lifetime, if the child lives at least 5 days.
• Adopted children: an adopted child does not inherit on intestacy from a pre-adoption parent, and that parent does not inherit from the child. Adoption by a pre-adoption parent's spouse does not end the parent-child relationship for succession purposes.

The home, administration and minors

Without the surviving spouse's written consent, the personal representative must not dispose of the spousal home during the 180 days after the representation grant is issued, or any extended period. The only exception is where other assets cannot pay debts and a mortgage or charge on the home would not raise enough.

The first priority to be granted administration on an intestacy is the spouse, or a person the spouse nominates. A child ranks next, applying with the consent of a majority of the children. In special circumstances, the court may appoint any person it considers appropriate.

A minor's share, where no trust exists, is paid by the personal representative to the Public Guardian and Trustee in trust for the minor.

What to do next

• Confirm whether the surviving partner qualifies as a spouse, including any separation and how long the relationship lasted.
• List all of the deceased's children, including any who died first and any adopted children, and note whether each is also the spouse's child.
• Check BC Laws for any current prescribed amount higher than the preferential share figures in this article.
• Gather information on assets and debts to see whether the estate is smaller than the preferential share.
• Check the rules on the family home before any sale, because a personal representative must not dispose of the spousal home during the 180 days after the representation grant is issued, or any extended period, unless the surviving spouse consents in writing or the limited debt exception applies.
• Speak with a lawyer about applying for administration and about the blended-family issues in your case.

Frequently asked questions