Who Inherits When a Spouse Dies Without a Will in British Columbia?

When someone dies without a valid will, the Wills, Estates and Succession Act (WESA) decides who receives the estate. If you are the surviving spouse, your main questions are usually whether you get everything and whether you must share with the deceased's children.

The answer depends on whether you qualify as a spouse under the Act, whether there are children or other descendants, and whether all of those descendants are also yours. This article walks through those points in plain terms.

This article covers the law of British Columbia.

Are you a spouse under the Act?

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. The relevant time is generally the date of death of one of them.

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

Separation can end spousal 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. There is one 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.

No descendants, or all children are also yours

If the deceased left a spouse and no surviving descendants, the whole intestate estate goes to the spouse.

If there are descendants and all of them are also descendants of the surviving spouse, the spouse takes a preferential share first. It is $300,000, or a greater prescribed amount. 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. The descendants' half is then divided among them under section 24 of the Act.

Because the amount can be raised by regulation, confirm the current figure before relying on any number you have seen.

When some children are from another relationship

If not all of the deceased's descendants are also descendants of the surviving spouse, the spouse's preferential share drops to $150,000, or a greater prescribed amount. The remainder is still split equally between the spouse and the descendants, and the spouse still takes the household furnishings.

The table reflects the rules in sections 20 and 21 of the Act. The descendants' half is divided into equal shares, so adult children share equally with no preference for age. If a child died before the deceased, that child's own descendants take the parent's share.

Special situations that can change the result

• Small estates: if the net intestate estate is worth less than the spouse's preferential share, the spouse takes the whole estate and the descendants take nothing.
• More than one spouse: if more than one person qualifies as the deceased's spouse, they share the spousal share in the portions they agree on, and the court decides if they cannot agree.
• Partial intestacy: the same rules apply to any part of an estate that a will does not dispose of.
• 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.
• Children born later: a child conceived before the death but born afterward inherits if the child lives at least 5 days.
• The family home: without your written consent, the personal representative must not dispose of the spousal home during the 180 days after the representation grant is issued, or any extended period. The only 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 first priority to be granted administration on an intestacy is the spouse of the deceased, or a person the spouse nominates. Applications can be made at any B.C. Supreme Court registry and require Form P2 and a wills notice search. Before applying, the applicant must deliver a notice of proposed application in Form P1 and wait at least 21 days.

• Search carefully for a will, including electronic devices.
• Gather proof of marriage or of the length of a marriage-like relationship.
• List the deceased's children and note which are also yours.
• List the estate's assets and debts.
• Speak with a lawyer if the family is blended, the estate is large, or anyone disputes your status as spouse.

Frequently asked questions