Do Gifts to a Spouse Still Stand After Divorce in BC?

A will-maker may have named their spouse in a will and then separated or divorced without ever changing it. Family members are often unsure whether the former spouse still inherits or can act as executor, and the question often comes up at a stressful time.

In British Columbia, the Wills, Estates and Succession Act (WESA) answers this directly. The rule is more about when people stop being spouses than about the divorce itself. This page walks through the rule, its exceptions, and what usually happens next when an estate is administered.

This article covers the law of British Columbia.

The basic rule

If the will-maker and spouse cease to be spouses after the will is made, any gift to the former spouse, their appointment as executor or trustee, and any power of appointment given to them are revoked. The gift is distributed as if the spouse had died before the will-maker.

That means the failed gift is dealt with under the usual rules for a beneficiary who died first, such as an alternative beneficiary named in the will.

If there is no alternative beneficiary and the failed beneficiary was the will-maker's sibling or descendant, the gift goes to that beneficiary's descendants. Otherwise, a failed gift goes to the surviving residuary beneficiaries named in the will, in proportion to their interests. Which of these applies depends on the wording of the will and on who the failed beneficiary was, so it is worth confirming with a lawyer.

When do spouses stop being spouses?

So a final divorce order is not always the key date. Separation can be enough for married spouses.

Because the date matters, it helps to collect anything that shows when the relationship changed, such as when one person moved out, or when a partner ended a marriage-like relationship. If the dates are disputed, how the rule applies depends on your situation, so it is worth confirming with a lawyer.

Exceptions that can change the result

• Contrary intention: the revocation is subject to any contrary intention in the will.
• Reconciliation after revocation: once gifts are revoked, a later reconciliation does not reverse the revocation.
• Attempted reconciliation: spouses are not treated as separated if, within one year, they resume living together primarily to reconcile and live together for one or more periods totalling at least 90 days.

These exceptions work in different directions. The first depends on what the will itself says. The second means a revocation, once it has happened, stays in place. The third can mean the spouses were never treated as separated in the first place.

What stays in the will, and who steps in

A will is not revoked, in whole or in part, by a presumed intention to revoke because of a change in circumstances. Only the parts dealing with the former spouse are affected by the rule above. How the rest of the will applies depends on its wording and your situation, so it is worth confirming with a lawyer.

If a former spouse was the only named executor, the will may name an alternate. A person named as executor may also renounce the appointment, and unless the court orders otherwise, the estate is then administered as if they had never been appointed.

If an executor is not doing the job, any person with an interest in the estate may apply to the court to remove or pass over a personal representative. Grounds include being unable, unresponsive or unwilling to act to the extent it hampers administration.

A person who does not survive the deceased by 5 days, or by any longer period set in the document, is treated as having died first.

What happens when the estate is administered

Before applying for probate, the applicant must give notice of the proposed application to the persons the Supreme Court Civil Rules specify. That notice must go to each beneficiary under the will, as well as to living executors and alternate executors. It is delivered with a copy of the will, which is the main way a beneficiary gets a copy.

The applicant cannot file the probate application until at least 21 days after delivering the notice. The notice must also tell beneficiaries that the applicant has to provide an accounting of how the estate was administered and how its assets were distributed.

Except by court order, a personal representative must not distribute the estate within the 210 days after the grant is issued. With a will, early distribution is possible if all beneficiaries with an interest and all persons who could bring a wills variation claim consent. This timing can matter if people disagree about whether a gift to a former spouse failed.

What to do next

• Work out the date the spouses ceased to be spouses, since that is what matters.
• Check whether the will says anything about a former spouse.
• Identify any alternative executor or beneficiary named in the will.
• Consider whether any attempted reconciliation might fit the 90-day rule.
• Keep a copy of the will and any notice of a probate application you receive.
• Speak with a lawyer if the facts are mixed, for example a reconciliation, or a will with unusual wording.

Frequently asked questions