Common-Law Partner Dies Without a Will in BC: Who Inherits?

Losing a partner is hard enough without finding out there is no will. If you were not married, you may be wondering whether you inherit anything at all.

In British Columbia, the Wills, Estates and Succession Act (WESA) sets out who receives an estate when there is no will. This article explains how a common-law partner fits in, how the two-year test works, and what to do next.

This article covers the law of British Columbia.

Are you a spouse under the intestacy rules?

Under WESA, two people are spouses if both were alive immediately before the relevant time, generally the death, and either were married or lived in a marriage-like relationship for at least two years. So a common-law partner who meets the two-year test is treated as a spouse for intestacy.

The BC government says wills, estates and income tax already treat common-law and married families the same.

There is an exception. People cease to be spouses if, in a marriage-like relationship, one or both terminate the relationship. If you had already separated before the death, that may affect your status, so the dates matter.

How much does the surviving spouse receive?

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 the descendants are also the spouse's. The remainder is split equally between the spouse and the descendants.

If not all of the deceased's descendants are also the spouse's descendants, the spouse's 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.

When more than one person claims to be the spouse

Sometimes a legal spouse and a common-law partner both qualify. 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.

Whether you meet the two-year test can depend on evidence of when you started living together in a marriage-like relationship. How that evidence would be weighed depends on your situation, so it is worth confirming with a lawyer.

What counts as evidence of your relationship

• Shared addresses on bills, tax records, leases or mortgage documents.
• Joint bank accounts or evidence of shared household expenses.
• Insurance, benefit or pension forms naming you as partner.
• Messages, cards and photos showing when you began living together.
• Statements from friends, family or neighbours who knew you as a couple.

No single item decides the matter. A lawyer can tell you which records are most useful in your situation.

What to do next

• Look carefully for a will, in case one exists, before assuming there is none.
• Make a list of the deceased's assets, debts and any beneficiary designations.
• Gather proof of the date you began living together.
• Find out whether the deceased had children, and whether they are also your children.
• Check whether anyone else may claim to be a spouse.
• Speak with a wills and estates lawyer before distributing or signing anything.

Estate rules can interact with pensions, insurance and property held jointly, so confirming the details with a lawyer is worthwhile.

Frequently asked questions