Is a Spouse Entitled to the Family Home in BC?

Worrying that you might lose your home after a death or a separation is stressful. British Columbia law gives spouses some protections, but they work differently depending on which event has happened.

This article covers both: your rights under the Wills, Estates and Succession Act (WESA) when a spouse dies, and under the Family Law Act when a relationship ends.

This article covers the law of British Columbia.

Who counts as a spouse

Under WESA, spouses are married persons, or persons who lived in a marriage-like relationship for at least 2 years. Under the Family Law Act, a spouse is someone who is married, or who has lived in a marriage-like relationship for at least 2 years or has a child with the other person. The Family Law Act definition also includes a former spouse, and spouses may be separated while still living in the same residence.

When your spouse dies

A surviving spouse may acquire the spousal home from the personal representative. The right is exercised by written notice, and it must be exercised within 180 days after the grant is issued unless the court extends the period.

• Without your written consent, the personal representative generally cannot dispose of the home during the 180 days.
• While you live there pending the purchase, you pay insurance, taxes, maintenance, utilities and mortgage payments.
• The court may, on application, order you to keep the home and convert the descendants' interest into a registrable charge.

That charge is payable on the earliest of 12 months after your death, 12 months after you leave the home, or the sale completion date, unless the court orders otherwise.

The deceased's estate vests in the personal representative without further declaration or order, and the personal representative must not distribute the estate within 210 days, subject to the exceptions in that section. If the estate is insolvent, the personal representative must apply the proceeds in the statutory order of priority for debts.

Ownership, wills and intestacy

If the home was held in joint tenancy, the survivor takes the deceased's interest, and this property sits outside the estate. If there is no will and a spouse but no descendants, the whole intestate estate goes to the spouse. With descendants, the spouse takes household furnishings plus a preferential share of $300,000 if all descendants are common to both, or $150,000 if not, and the residue is split half and half. If there is no spouse, the intestate estate goes to the descendants in equal shares.

How title is held matters. Land transferred to two or more people (other than personal representatives or trustees) is held as tenants in common unless a contrary intention appears in the instrument, and their interests are presumed equal if unstated. A joint tenant may transfer their interest to themselves, which severs the joint tenancy; severed owners then hold as tenants in common and there is no survivorship.

To register survivorship at the Land Title Office, an application on Form 17 is filed with a certified copy of the grant of probate or administration, or a certificate of death. If joint owners die within 5 days of each other, or survival is uncertain, WESA ss. 5 or 10 apply.

If a will leaves you too little, the court may order provision for a spouse not adequately provided for, and that claim must start within 180 days after the grant is issued.

When you separate

On separation, each spouse has a right to an undivided half interest in all family property as a tenant in common. The Family Law Act defines family property in section 84 and excluded property in section 85, such as property acquired before the relationship began. The court can grant one spouse exclusive occupation of the family residence for a specified period, and can order an unequal division if equal division would be significantly unfair.

Spouses are not treated as separated if, within one year after separation, they live together for periods totalling at least 90 days.

What to do next

How these rules apply to your home depends on your situation, so it is worth confirming the details with a lawyer. A few practical steps can help you prepare.

• Confirm how title to the home is held and whether there is a will.
• Mark the date the grant is issued and count 180 days from it.
• Do not sign a sale or move out without advice.
• Keep records of who pays the mortgage, taxes and insurance.
• Gather dates of the relationship and any separation.
• Speak with a lawyer early, because deadlines are short.

Frequently asked questions