How Much Does a Spouse Get Under BC Intestacy Rules?

If your spouse dies without a will, the amount you receive depends mainly on whether there are children or other descendants, and whose they are. In British Columbia the answer comes from the Wills, Estates and Succession Act (WESA).

This article explains the spouse's entitlement step by step, including the preferential share, the household furnishings, and what changes when a child comes from another relationship. Figures can be raised by regulation, so confirm current amounts before relying on them.

This article covers the law of British Columbia.

First, who counts as a spouse

Two people are spouses if they were married, or had lived in a marriage-like relationship for at least 2 years, and both were alive immediately before the relevant time. The relevant time is normally the date of death.

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.

Married spouses stop being spouses if an event such as separation causes an interest in family property to arise under the Family Law Act. Partners in a marriage-like relationship stop being spouses when one or both end the relationship. 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.

When the spouse takes the whole estate

If the deceased left a spouse and no surviving descendants, the whole intestate estate goes to the spouse.

The spouse also takes the whole estate in a small estate, even where there are 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.

Spouse and descendants: preferential share, then a split

When the deceased left a spouse and 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.

The spouse also takes the household furnishings. After the preferential share, the rest of the intestate estate is divided equally between the spouse and the descendants, and the descendants' half is divided among them under s. 24.

The descendants' property is divided into equal shares, with one share for each surviving descendant and one for each deceased descendant who left descendants, so adult children share equally with no preference for age. If a child died before the deceased, that child's share is divided in the same way among that child's own descendants, so grandchildren take their parent's share.

These rules also apply to any part of an estate that a will does not dispose of.

Children from another relationship

If not all of the deceased's descendants are also descendants of the surviving spouse, the spouse's preferential share drops to $150,000, or a greater prescribed amount. The remainder is still divided equally between the spouse and the descendants.

Whether a stepchild has any separate claim depends on the facts, and a lawyer can confirm it for you. Because this can change who receives what, it is worth confirming your situation before relying on any figure.

More than one spouse, and the family home

If more than one person qualifies as the deceased's spouse, they share the spousal share in the portions they agree on. If they cannot agree, the court decides.

The family home has extra protection. 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.

The spouse of the deceased, or a person the spouse nominates, has first priority to be granted administration on an intestacy, and a child ranks next, applying with the consent of a majority of the children. In special circumstances, the court may appoint any person it considers appropriate as administrator.

What to do next

• Confirm whether all the deceased's children are also yours.
• Check the current prescribed amounts of the preferential share on BC Laws.
• List the estate's assets and debts to see if the estate exceeds the preferential share.
• Gather proof of your relationship if you were common-law.
• Get advice about the family home before making any decisions about it.

A lawyer can work through the numbers with you and confirm which amounts currently apply.

Frequently asked questions