Does a Spouse Get the Family Home After a Death in British Columbia?

After a spouse dies, the family home is usually the biggest question. There is no single rule that gives the surviving spouse the house. The answer depends on how the home was owned, whether there is a will, and what the law gives a spouse if there is not.

This article walks through those paths: joint ownership, a will, intestacy, the spouse's right to buy the home, and a variation claim. Every situation turns on its own facts, so treat this as a map and not a verdict.

This article covers the law of British Columbia.

Start with how the home was owned

When a joint tenant dies, the survivor takes the deceased's interest. Survivorship property sits outside the estate, because the WESA section on devolution of land applies unless there is a right to land by survivorship. To register the change at the Land Title Office, an application must be filed with a certified copy of the grant of probate or administration, or a certificate of death, using Form 17 and selecting Transmission to Surviving Joint Tenant.

Not every couple holds title as joint tenants. Land transferred to two or more people is held as tenants in common unless a contrary intention appears in the instrument. Owners whose joint tenancy has been severed also hold as tenants in common, and there is no survivorship. Check the title search to see which applies to your home.

If you and the deceased had separated, Family Law Act rules may matter too. On separation each spouse has a right to an undivided half interest in all family property as a tenant in common. Spouses are not treated as separated if within one year after separation they live together for periods totalling at least 90 days.

If there is a will

If the home was not held in joint tenancy, a valid will generally decides who receives it, and the will's wording matters. The deceased's estate vests in the personal representative without further declaration or order. The personal representative must not distribute the estate within 210 days, subject to the exceptions in that section.

If the will leaves the home to someone other than you, or leaves you too little, the options described below may be open to you.

If there is no will: the preferential share

For these rules a spouse is a married person, or a person who lived in a marriage-like relationship for at least 2 years. The intestacy rules then work like this:

• With a spouse and no descendants, the whole intestate estate goes to the spouse.
• With a spouse and 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.
• The residue is then split half to the spouse and half to the descendants.
• With no spouse, the intestate estate goes to the descendants in equal shares.

The preferential share is a sum of money, not a gift of the house itself. Whether it covers the home depends on the home's value and what else is in the estate.

The spouse's right to acquire the home

A surviving spouse may acquire the spousal home from the personal representative. The right must be exercised within 180 days after the grant is issued unless the court extends the period, and it is exercised by written notice. Without the spouse's written consent, the personal representative generally cannot dispose of the spousal home during the 180-day period. A spouse occupying the home pending purchase pays insurance, taxes, maintenance, utilities and mortgage payments.

The court may, on application, order the spouse to keep the home and convert the descendants' interest into a registrable charge. That charge is payable on the earliest of 12 months after the spouse's death, 12 months after the spouse leaves the home, or the sale completion date, unless the court orders otherwise.

Variation claims and what to do next

The court may order provision from the estate for a spouse or child not adequately provided for by the will. A wills variation claim must start within 180 days after the grant is issued in British Columbia.

• Get a title search to confirm how the home is held.
• Find out whether there is a will and whether a grant has been applied for or issued.
• Note the 180-day dates for buying the home and for any variation claim as soon as the grant is issued.
• Do not move out or agree to anything in writing before getting legal advice.
• Ask a lawyer about the mortgage, since what happens on death depends on the mortgage contract.

Frequently asked questions