- Whether you count as a spouse is decided at the date of death, and married spouses stop being spouses once an event such as separation gives rise to an interest in family property under the Family Law Act.
- The two years in the Act is the length a marriage-like relationship must last to count, not a waiting period after separation.
- A short reconciliation can undo a separation only if the couple resumed living together primarily to reconcile, within one year, for periods totalling at least 90 days.
Your spouse has died without a will, and the two of you were separated but never divorced. You may be wondering whether you still inherit, whether a certain number of years apart matters, and who steps in if you do not count.
In British Columbia, the rules on who counts as a spouse for an intestacy sit in the Wills, Estates and Succession Act (WESA). The answer turns on dates and facts, so it helps to understand the test before you assume the worst or the best.
This article covers the law of British Columbia.
Who counts as a spouse when there is no will
Under WESA, two people are spouses of each other if both were alive immediately before the relevant time and they were married to each other, or had lived in a marriage-like relationship for at least 2 years. The relevant time is generally the date of death of one of them.
For unmarried partners, the 2 years is about how long the marriage-like relationship lasted. The Act sets no particular document as proof, so the relationship is shown by evidence. Nothing in this test describes a number of years of separation that must pass before a spouse is cut out.
What separation does to spouse status
Separation matters, but the Act handles married and unmarried couples a little differently.
| Situation | What the Act says |
|---|---|
| Married, then separated | 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. |
| Common-law, then ended | Spouses in a marriage-like relationship stop being spouses when one or both of them end the relationship. |
| Married but not separated | You remain spouses at the date of death. |
Being married on paper is therefore not enough on its own. If the separation happened before the death, the question is whether it had the legal effect described above. Exactly when a separation occurred can be disputed, and that is a good reason to get advice early.
The reconciliation exception
A couple is not treated as separated if, within one year after separating, they resumed living together primarily to reconcile and lived together for periods totalling at least 90 days.
This is an exception with several parts, and each one needs evidence. A brief stay for another reason, such as help during an illness, may not meet the test. Whether a particular arrangement qualifies depends on the facts and is worth confirming with a lawyer.
If you do count as a spouse
If there are no surviving descendants, the whole intestate estate goes to the spouse. If there are 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. Where some descendants are from another relationship, that share drops to $150,000, or a greater prescribed amount.
The spouse also takes the household furnishings, and the rest of the estate is divided equally between the spouse and the descendants. If the net estate is worth less than the preferential share, the spouse takes everything. 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.
If you do not count as a spouse, the estate goes through the order that applies when there is no surviving spouse, starting with the deceased's descendants. The preferential share amounts may have been changed by regulation, so confirm the current figures.
What to do next
A surviving spouse has first priority to be granted administration, or can nominate someone. If your status is uncertain, gather evidence before you act.
- Find the marriage certificate and any separation agreement, court filings or correspondence about the separation.
- Write down the dates you separated, who moved out and where each of you lived.
- Note any period of living together again, and why.
- For a common-law relationship, collect evidence of how long it lasted, such as shared leases, bills and joint accounts.
- Speak with a lawyer before applying for a grant or agreeing to anything with other family members.
Frequently asked questions
Is there a two-year separation rule in BC?
The 2 years in WESA is the length a marriage-like relationship must last for an unmarried partner to count as a spouse. For married spouses, the test is whether an event such as separation caused an interest in family property to arise under the Family Law Act.
Does a divorce have to be final for me to lose spouse status?
Not under the wording described above. Married spouses stop being spouses when an event such as separation causes an interest in family property to arise under the Family Law Act. A lawyer can tell you how that applies to your dates.
Can getting back together before the death restore my status?
It can if the reconciliation exception is met. You must have resumed living together primarily to reconcile within one year after separating, and lived together for periods totalling at least 90 days.
What if both a separated spouse and a new partner claim to be the spouse?
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. Because separation can end spouse status, it matters who still qualifies at the date of death.
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
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