Can Family Challenge an Intestate Estate Distribution in British Columbia?

If someone died without a will, the law decides who inherits. If you are a spouse or child who feels left out or shortchanged, you may wonder whether the result can be changed.

A first step is to check whether the intestacy rules were applied correctly to your family. Whether any court option goes further depends on the facts and is worth confirming with a lawyer.

This article covers the law of British Columbia.

How the intestacy shares work

If the deceased left a spouse and no surviving descendants, the whole intestate estate goes to the spouse.

If there is a spouse and descendants, the spouse takes a preferential share first. It is $300,000, or a greater prescribed amount, where all the deceased's descendants are also descendants of the surviving spouse. If not all are, it drops to $150,000, or a greater prescribed amount.

The spouse also takes the household furnishings. The rest is then divided equally between the spouse and the descendants. If the net estate is worth less than the preferential share, the spouse takes everything and the descendants take nothing.

Because the dollar amounts can be raised by regulation, confirm the current figures before relying on them.

Check who counts as a spouse

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

There are exceptions. Married spouses stop being spouses if an event occurs that causes an interest in family property to arise under the Family Law Act, such as separation. Partners in a marriage-like relationship stop being spouses when one or both 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 a spouse, they share the spousal share as they agree, and the court decides if they cannot agree.

An unmarried partner must show the relationship lasted at least 2 years, and the Act sets no particular document as proof, so evidence matters.

Check how descendants and others are counted

Estate property for descendants is divided into equal shares, so adult children share equally with no preference for age. The share of a child who died first is divided among that child's own descendants.

• A person who does not survive the deceased by 5 days is treated as having died first.
• A child conceived before death but born afterward can inherit if the child lives at least 5 days.
• A child conceived and born after death can inherit only on conditions, including birth within 2 years of death.
• An adopted child does not inherit from a pre-adoption parent, and that parent does not inherit from the child.
• The rules also apply to any part of an estate that a will does not dispose of.

If there is no spouse, the estate goes first to descendants, then to parents, then to siblings, nieces and nephews, then grandparents and their descendants, then great-grandparents and their descendants. If no one qualifies, it passes to the government.

Other court options

Some people ask whether a court claim based on fairness can change an intestate result, and how that applies depends on your situation, so it is worth confirming with a lawyer. Whether that route fits you, and what time limits apply, depends on your relationship to the deceased and the facts. Because limits can be short, get advice early.

The spouse also has some protection for the home. 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.

What to do next

• List the family members and note each one's relationship to the deceased.
• Gather evidence of any marriage-like relationship, separation or reconciliation.
• Ask the administrator how the shares were worked out and request it in writing.
• Confirm the current preferential share amounts.
• See a lawyer promptly about any court claim and its time limits.

Frequently asked questions