Can a Common-Law Partner Claim Against an Estate in BC?

Losing a partner is hard enough without discovering that a will leaves you little or nothing, or that there is no will at all. Common-law partners often worry that they have no rights because they never married.

In British Columbia, the law generally treats common-law and married families the same for wills and estates. This article explains who counts as a spouse, what happens without a will, and what to do if you are left out of one.

This article covers the law of British Columbia.

Who counts as a spouse

For intestacy, two people are spouses if both were alive immediately before the relevant time, generally death, and either were married or lived in a marriage-like relationship for at least two years.

People cease to be spouses if, in a marriage-like relationship, one or both terminate the relationship. For a marriage, they cease to be spouses when an event gives rise to an interest in family property under the Family Law Act.

If there is no will

If a person dies without a will leaving a spouse but no descendants, the whole intestate estate goes to the spouse.

If there is a spouse and descendants, the spouse gets the household furnishings and a preferential share. The preferential share is $300 000 (or a greater prescribed amount) if all descendants are also the spouse's, and the remainder is split equally between the spouse and the descendants.

If not all the deceased's descendants are also the spouse's descendants, the preferential share is $150 000 (or a greater prescribed amount). If the net estate is less than the preferential share, the spouse takes the whole estate. The prescribed amounts can change, so confirm the current figures.

When a legal spouse and a common-law partner both claim

If two or more people qualify as the deceased's spouse, they divide the spousal share as they agree, and the court decides if they cannot agree. This can apply where a legal spouse and a common-law partner both claim.

If you were left out of a will

Whether a will that gives a surviving partner little or nothing can be challenged depends on your situation, so it is worth confirming with a lawyer. Whether a claim is available, and how a court weighs the circumstances, depends on the facts of your relationship and the estate.

Time limits can apply to claims like this, and how they apply to you depends on your situation, so it is worth confirming with a lawyer early. A lawyer can explain which deadline applies and what a court is likely to consider.

Separately, whether you still count as the deceased's spouse for the estate matters. Under the Wills, Estates and Succession Act, people in a marriage-like relationship stop being spouses if one or both of them end the relationship, and married people stop being spouses when an event gives rise to an interest in family property under the Family Law Act. If more than one person qualifies as the deceased's spouse, they divide the spousal share as they agree, and the court decides if they cannot agree.

What to do next

• Find out whether there is a will and who is named as executor.
• Gather proof of how long you lived together, such as shared leases, bills and records.
• List the assets you know of, including accounts and property.
• Avoid signing releases or agreeing to anything about the estate before you get advice.
• Contact a lawyer promptly about deadlines.

Frequently asked questions