Can a Separated Common-Law Partner Inherit From You in British Columbia?

You and a partner lived together for years, never married, and then the relationship ended. Months later, you wonder what would happen to your estate if you died without updating your will, or without having one. Would your former partner still inherit?

In British Columbia the answer turns on whether the person still counts as your spouse on the day you die. That depends on how the law defines a spouse for estates, when that status ends, and how separation is shown. This article walks through each step in plain terms.

This article covers the law of British Columbia.

Who counts as a spouse when there is no will

When someone dies without a valid will, the Wills, Estates and Succession Act (WESA) sets out who inherits. This is called intestacy. For these rules, two people are spouses if both were alive immediately before the relevant time, which is generally the time of death, and they either were married or lived in a marriage-like relationship for at least two years.

So a common-law partner can inherit like a married spouse, but only once the two-year threshold has been met. The government also notes that wills, estates and income tax already treat common-law and married families the same.

When a spouse stops being a spouse

Spousal status for inheritance can end before death. Under WESA, people cease to be spouses if, in a marriage-like relationship, one or both of them terminate the relationship. That means an unmarried partner does not need the other's agreement. One person ending the relationship can be enough.

Married spouses follow a different test. They cease to be spouses when an event gives rise to an interest in family property under the Family Law Act. Under that Act, on separation each spouse has a right to an undivided half interest in all family property as a tenant in common. How these two rules fit together on your dates depends on your situation, so it is worth confirming with a lawyer.

How separation is shown

People often assume separation means moving out. Under the Family Law Act, which deals with property and support between spouses, spouses may be separated while still living in the same residence. How that idea applies to the estate question under WESA depends on your facts, so it is worth confirming with a lawyer. Under the Family Law Act, the court may treat as evidence of separation one spouse communicating an intention to separate permanently, or an action showing that intention.

The Act does not set a fixed list of proof factors, so courts look at the evidence case by case. Texts, emails, separate bedrooms, a change in finances or a conversation about ending things can all matter, depending on the facts.

There is also a reconciliation rule in the Family Law Act. Spouses are not treated as having separated if, within one year after separating, they resume living together primarily to reconcile and live together for periods totalling at least 90 days. If you have separated and then tried again, ask a lawyer how that rule fits with your estate.

What a surviving spouse receives without a will

If the person who died left a spouse and no descendants, the whole intestate estate goes to the spouse. If there is a spouse and descendants, the spouse receives the household furnishings and a preferential share, and the remainder is split equally between the spouse and the descendants.

• If all the descendants are also the spouse's, the preferential share is $300 000, or a greater prescribed amount.
• If not all the descendants are also the spouse's, the 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.

Because the dollar figures can be increased by regulation, check the current prescribed amounts before relying on any number. A lawyer can confirm them for you.

When a legal spouse and a common-law partner both claim

Sometimes more than one person qualifies as the deceased's spouse. This can happen where a legal spouse and a common-law partner both claim. In that case they divide the spousal share as they agree, and the court decides if they cannot agree.

This is one reason a clear record of when relationships began and ended is valuable. It is also why a will that names who you want to benefit is far more certain than leaving the question to the default rules.

What to do next

• Write down the date you began living together and the date and manner in which the relationship ended.
• Keep messages or documents that show when you or your partner communicated an intention to separate.
• Make a new will, or update your existing one, soon after separating.
• Review beneficiary designations and joint ownership, since these may work differently from a will.
• Ask a lawyer whether your separation date, any attempt to reconcile, or a marriage that has not ended affects who counts as your spouse.

If you are separating, estate planning is often overlooked among the parenting, support and property questions. Having a lawyer review your situation can help make sure your wishes are the ones that apply.

Frequently asked questions