Does a Separated Spouse Still Inherit if There Is No Will in BC?

When someone dies in British Columbia without a will, the law decides who inherits. A surviving spouse is treated very differently from everyone else, so it matters a great deal who counts as a spouse. That question gets harder if the couple had separated, or had never married.

This article explains how the Wills, Estates and Succession Act (WESA) answers that question, what happens when a couple separated and then reconciled, and what changes when two people both claim to be the spouse. Your situation will turn on its own facts, so a lawyer can confirm how the rules apply.

This article covers the law of British Columbia.

Who counts as a spouse 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. Unless the Act says otherwise, the relevant time is the date of death of one of them.

For an unmarried partner, the marriage-like relationship must have lasted at least 2 years. The Act sets no particular document as proof, so the relationship is shown by evidence. That might include things like shared housing, shared finances and how the couple presented themselves, though what is persuasive depends on the facts.

When separation ends spouse status

Married 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. Spouses in a marriage-like relationship stop being spouses when one or both of them end the relationship.

Because the test is applied at the date of death, a couple who were separated at that time may find the surviving partner is no longer treated as a spouse for intestacy. Being legally married on paper is not enough on its own if a separation event had already happened.

The reconciliation exception

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.

Both parts matter: the purpose of living together again, and the length of time. A short stay or a move back for another reason, such as money or convenience, may not meet the test. Records of where each person lived can become important.

Why spouse status matters

• If the deceased left a spouse and no surviving descendants, the whole intestate estate goes to the spouse.
• If there is a spouse and descendants, the spouse takes a preferential share first, plus the household furnishings. The rest is divided equally between the spouse and the descendants.
• The preferential share is higher where all the descendants are also the spouse's descendants, and lower where some are not. In each case the Act allows a greater prescribed amount, so the current figure should be confirmed.
• If the net estate is worth less than the preferential share, the spouse takes the whole estate.
• The spouse, or a person the spouse nominates, has first priority to be granted administration.

If the person who died had no spouse under these rules, the estate passes in a different order, starting with descendants.

When two people both qualify as spouse

It is possible for more than one person to qualify as the deceased's spouse, for example a legal spouse who had reconciled and a partner of at least 2 years. In that case they share the spousal share in the portions they agree on. If they cannot agree, the court decides.

Next steps if you are in this position:

• Gather evidence of when and how the relationship began and ended, and any period of living together again.
• Note the date of death and where each person was living at that time.
• Find out whether there is any will at all, since the intestacy rules also apply to any part of an estate a will does not cover.
• Speak with a lawyer before applying to administer the estate or agreeing to any split with another claimant.

Frequently asked questions