- An unmarried partner counts as a spouse for intestacy only if the marriage-like relationship lasted at least 2 years.
- The Act sets no particular document as proof, so the relationship is shown by evidence.
- A common-law partner who has separated stops being a spouse when one or both end the relationship.
If your partner died without a will and you were not married, you may worry that you have no right to the estate. In British Columbia, that is not necessarily so, because the Wills, Estates and Succession Act (WESA) can treat a long-term partner as a spouse.
The key question is whether your relationship meets the legal test. This article explains that test, how it is proven, and what changes if you had separated.
This article covers the law of British Columbia.
The two-year test
Two people are spouses of each other 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. For this purpose the relevant time is the date of death of one of them, unless the Act says otherwise.
So an unmarried partner counts as a spouse for intestacy only if the marriage-like relationship lasted at least 2 years. If it lasted less, the test is not met.
These rules also apply to any part of an estate that a will does not dispose of, so they can matter even when there is a will. 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. That can affect who takes.
How the relationship is proven
The Act sets no particular document as proof, so the relationship is shown by evidence. There is no registration or certificate that settles it. A court or the people involved will look at how the two of you actually lived.
- Shared address records, such as a lease, mortgage or utility bills.
- Joint bank accounts, shared expenses and insurance or benefit designations naming each other.
- Tax filings, immigration or employment records that describe the relationship.
- Photographs, travel records and messages that show a life together.
- Statements from friends, family or neighbours who knew you as a couple.
What evidence matters most depends on the facts. A lawyer can help you decide what to collect and how to present it.
If you had separated before the death
Spouses in a marriage-like relationship stop being spouses when one or both of them end the relationship. A separation that had already happened can therefore remove spousal status.
There is an exception for reconciliation. 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.
What a qualifying partner receives
A qualifying partner is treated the same way as a married spouse. If the deceased left a spouse and no surviving descendants, the whole intestate estate goes to the spouse. If there are descendants, the spouse takes a preferential share first, of $300,000, or a greater prescribed amount, where all the descendants are also the spouse's. That drops to $150,000, or a greater prescribed amount, if some descendants are not the surviving spouse's.
The spouse also takes the household furnishings, and the rest is divided equally between the spouse and the descendants. If the net intestate estate is worth less than the spouse's preferential share, the surviving spouse takes the whole estate and the descendants take nothing. 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.
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.
A spouse also has first priority to be granted administration, or can nominate someone.
If you do not qualify as a spouse
Where there is no surviving spouse, the intestate estate goes first to the deceased's descendants. If there are none, it goes to the parents, then to descendants of the parents such as siblings, nieces and nephews, then to grandparents and their descendants, and then to great-grandparents and their descendants. If no one in that list is entitled, the estate passes to the government.
If you do not qualify but believe you have another claim, such as one arising from a will or from financial arrangements, a lawyer can tell you whether other options exist.
What to do next
- Write down when your relationship began and when you started living together.
- Collect documents and names of people who can confirm the relationship.
- Note any period of separation and any reconciliation.
- Do not distribute or sell estate property until it is clear who is entitled.
- Speak with a lawyer early, especially if the deceased had children or another possible spouse.
Frequently asked questions
How long do we need to have lived together?
The marriage-like relationship must have lasted at least 2 years. The test looks at the relationship up to the date of death.
Do I need a cohabitation agreement or certificate?
No particular document is required as proof. The relationship is shown by evidence of how you lived.
What if we had separated but still lived in the same home?
Common-law spouses stop being spouses when one or both end the relationship. Whether that happened depends on the facts, so get advice if this applies to you.
Can I be the administrator as a common-law partner?
If you qualify as a spouse, you have first priority to be granted administration, or you can nominate another person. The court can still appoint someone else in special circumstances.
Sources
- Wills, Estates and Succession Act, SBC 2009, c. 13, s. 2 — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
Ask our Team for a quote. We reply by email.