Who Inherits When a Spouse Dies Without a Will in BC

Losing a spouse without a will leaves the survivor facing both grief and practical questions. A common worry is whether the children, or other relatives, will receive part of the estate.

In British Columbia, the answer is set by the Wills, Estates and Succession Act (WESA). It depends on whether there are descendants, and whether those descendants are also the surviving spouse's. This article explains the general rules.

This article covers the law of British Columbia.

Who counts as a spouse

Two people are spouses 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.

Separated couples are treated differently. 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, and partners in a marriage-like relationship stop being spouses when one or both end the relationship. If they resumed living together primarily to reconcile within one year after separating, and lived together for periods totalling at least 90 days, they are not treated as separated.

Spouse and no children or other descendants

If the deceased left a spouse and no surviving descendants, the whole intestate estate goes to the spouse. Parents and siblings of the deceased do not receive a share in that case, because they only inherit when there is no surviving spouse.

Spouse and children

When there is 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. If not all of them are, the preferential share drops to $150,000, or a greater prescribed amount. Because the amounts can be raised by regulation, confirm the current figure before relying on it.

The spouse also takes the household furnishings. After the preferential share, the rest of the estate is divided equally between the spouse and the descendants, and the descendants' half is divided among them. Adult children share equally with no preference for age, and the share of a child who died first goes to that child's own descendants.

Situations that complicate the split

• More than one spouse: if more than one person qualifies, they share the spousal share in the portions they agree on, and if they cannot agree the court decides.
• Survivorship: a person who does not survive by 5 days, or a longer period set by an instrument, is treated as having died first.
• Partial intestacy: the same rules apply to any part of an estate that a will does not dispose of.
• Minor children: where no trust exists, a minor's share is paid to the Public Guardian and Trustee in trust for the minor.
• The family home: without the surviving spouse's written consent, the personal representative must not dispose of the spousal home during the 180 days after the grant is issued, or any extended period. The exception is where other assets cannot pay debts and a mortgage or charge on the home would not raise enough.

What to do next

The surviving spouse has first priority to apply for administration, or can nominate another person to do so. Applications are made at a B.C. Supreme Court registry.

• Confirm who the descendants are and whether each is also your child.
• List the estate's assets and debts to see how the preferential share applies.
• Gather proof of your relationship if you were not married.
• Check the current preferential share amount before relying on a figure.
• Get legal advice before selling or transferring the home or other major assets.

Frequently asked questions