Who Inherits With No Will and No Spouse in British Columbia?

When someone dies in British Columbia without a valid will, the law decides who receives the estate. This is called an intestacy. If there is no surviving spouse, the rules are simpler than when a spouse and children are both involved, but they still follow a strict order.

This article walks through that order, explains who counts as a spouse (because that decides whether this order applies), and covers a few special cases. It does not cover debts, preferential share amounts or who can act as administrator.

This article covers the law of British Columbia.

First, who counts as a spouse?

The order described below applies only if there is no surviving spouse. Two people are spouses if both were alive immediately before the relevant time and they were married, or had lived in a marriage-like relationship for at least 2 years. The relevant time is generally the date of death.

An unmarried partner counts only if the marriage-like relationship lasted at least 2 years, and the Act sets no particular document as proof, so it is shown by evidence.

• Married spouses stop being spouses if an event occurs that gives rise to an interest in family property under the Family Law Act, such as separation.
• Partners in a marriage-like relationship stop being spouses when one or both end the relationship.
• 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.

The order of inheritance when there is no spouse

With no surviving spouse, the estate goes in the following order under section 23 of the Wills, Estates and Succession Act (WESA), and each step applies only if no one qualifies at the earlier step.

The last step is a catch-all: if no one listed earlier is entitled, the whole intestate estate passes to the government, and the Escheat Act then applies.

How children and grandchildren share

Property going to descendants is divided into equal shares: one for each surviving descendant, and one for each deceased descendant who left descendants, counted in the nearest generation that has a survivor. Adult children therefore share equally, with no preference for age.

If a child died before the deceased, that child's share is divided in the same way among that child's own descendants, so grandchildren take their parent's share.

Special cases that can change who takes

• Survivorship: a person who does not survive the deceased by 5 days, or a longer period set by an instrument, is treated as having died first, which can affect who takes and whether shares pass down.
• Child born after death: a descendant conceived before the death but born afterward inherits as if born in the deceased's lifetime, if the descendant lives at least 5 days.
• Adopted children: an adopted child does not inherit on intestacy from a pre-adoption parent, and that parent does not inherit from the child. Adoption by a pre-adoption parent's spouse does not end the parent-child relationship for succession purposes.
• Partial intestacy: the same rules apply to any part of an estate that a will does not dispose of.

A child conceived and born after the death can inherit only if specific conditions are met. Cases like this depend on the facts and are worth discussing with a lawyer.

What to do next

Before anyone applies for a grant of administration, a notice of proposed application in Form P1 must be delivered, and the applicant may not apply until at least 21 days after delivering it. On an intestacy, that notice goes to each intestate successor. If there is none, it goes to the Attorney General.

• Work out whether the deceased had a spouse under the tests above.
• List the deceased's children, and any grandchildren whose parent died first.
• If there are no descendants, move through parents, siblings, nieces and nephews, then grandparents and great-grandparents.
• Note any adoptions, any child born after the death, or anyone who may not have survived by 5 days.
• Speak with a lawyer if the family situation is unclear or relatives disagree.

Frequently asked questions