When it comes to inheritance, many people assume that a spouse will automatically inherit everything in the event of their partner’s passing. However, in British Columbia, the laws surrounding inheritance can be quite complex. In this article, we will explore the ins and outs of inheritance laws in BC and answer the question of whether a spouse automatically inherits everything. We’ll cover the importance of having a will, the rights of common law partners, and much more to help you understand the inheritance process in BC. So, whether you’re preparing for the future or dealing with the loss of a loved one, this article will provide you with the information you need to navigate the inheritance process in British Columbia.
BC estate law sets out a detailed scheme for distribution of assets if someone passes away without a will. A person dying without a will is deemed to have died “intestate” and that person’s estate will be distributed according to the Wills Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), which came into force on March 31, 2014. Prior to WESA’s enactment, the Estate Administration Act (“EAA”) dictated how an estate was to be distributed when a person with assets in BC died without a will.
Under BC estate law, the scheme for distribution of assets depends on whether the deceased had a spouse and/or dependants. The rules of intestacy give first priority to the surviving spouse, and as such, the question of who is a spouse has significant ramifications. Under WESA, the definition of spouse includes people who are married to each other, and also includes a person who has lived with another person in a marriage-like relationship for at least two years at the date of death of one of the persons. (The EAA, WESA’s predecessor, contained a similar two year requirement for a “marriage-like” relationship.)
Under Part 3 of WESA, the distribution of a deceased person’s estate is determined by their will, if they had one. If the deceased person did not have a will, the estate is distributed according to the laws of intestacy, which prioritize certain relatives over others in terms of inheritance.
Spouses are among the first in line to inherit under WESA’s laws of intestacy. In particular, if the deceased person was married at the time of their death, the spouse is entitled to the first $300,000 of the estate and half of the remaining estate. The other half of the remaining estate is divided among any children of the deceased. If there are no children, the spouse inherits everything.
However, if the deceased person had children from a previous relationship and they did not have a will, the children will inherit a portion of the estate as well. This means that a spouse may not automatically inherit everything in BC if the deceased person had children from a previous relationship and did not have a will.
Additionally, if a person is living in a common law relationship and they do not have a will, their common-law partner is not entitled to anything under the laws of intestacy. It is highly recommended to have a will to ensure that your loved one’s assets are distributed according to your wishes.
So, the answer to the question asked above is yes: under BC estate law, a common-law spouse who meets the definition of “spouse” is to receive a share of the intestate estate in accordance with the rules and priorities set out in Part 3 of WESA. However, as the outcome in L.E. v. D.J., 2011 BCSC 671 demonstrates, the two-year mark fixed by BC estate law is strictly applied. In L.E. v. D.J. (decided when the EAA was still in force), L.E. was found to have entered into a marriage-like relationship with the deceased one year and 355 days before his death, just 10 days shy of the two-year mark fixed by the legislation. Despite this minimal shortfall, L.E.’s action for a declaration that she met the definition of “spouse” pursuant to BC estate law was dismissed. Madam Justice Russell held that the timing requirements of the provision were clear and mandatory and as such the two-year requirement could not be relaxed (at paras. 290-298).
We have previously discussed the criteria for determining whether a relationship was “marriage-like” and the important implications that flow from such a determination with respect to entitlement to spousal support. BC estate law also requires the court to take a holistic view of the disputed relationship and measure it against those objective criteria to determine if the parties were in a committed, marriage-like relationship and when the marriage-like relationship began.
The outcome in L.E. v. D.J. is particularly interesting given the unorthodox relationship in question and the fact that the relationship itself was of greater than four years duration – the court found as a matter of fact that it did not become “marriage-like” until a specific point mid-way through the relationship. L.E. and B.F. met in 2005 through an internet site for alternative relationships. At the time, L.E. was 16 years old and B.F. was 53 years old. From 2006 to 2009, L.E. and B.F. spent the majority of their nights together at B.F.’s home in Kelowna. When L.E. decided to go to post-secondary school in 2009, she would stay with her mother in Vernon, returning to B.F.’s house as often as she could. B.F. concealed his relationship with L.E., instead introducing her as his roommate, nanny, or offering no explanation as to who she was. L.E. asked B.F. to be her boyfriend but B.F. refused. They kept their finances separate and they were not sexually exclusive.
However, when L.E. went on a trip to Hungary in 2008, B.F. sent L.E. an email offering to commit to a long-term relationship if she accepted his terms, which she did. In the court’s view, that email was B.F.’s declaration of commitment; it pointed to a desire to have a future together. Clearly, L.E. did not view their relationship as one of commitment prior to this date, otherwise she would not have asked B.F. to commit to her. The court also noted that one of the reasons for L.E. returning to post-secondary school in 2009 was to enable her to find more remunerative employment so that she could contribute more to the household. This showed that L.E. and B.F. were looking to a future together and it demonstrated a difference in long-term intention between the two of them.
The email, which in the court’s view signified the first day that the parties cohabited in a marriage-like relationship, was sent February 23, 2008. B.F. died on February 13, 2010. Madam Justice Russell concluded that while a period of 10 days short of the required time appeared to be minimal, the wording of the statute did not permit abridging the time required to meet the definition of a spouse. At paragraph 296, she noted that the legislature made a policy decision to limit the definition to two years and, while it may be arbitrary, it is not open to the court to allow a claim that falls short. There is no discretion; thus, the court cannot change or relax this requirement.
In summary, in BC, a spouse is entitled to the first $300,000 of the estate and half of the remaining estate if the deceased person was married at the time of death and did not have a will. But if the deceased person had children from a previous relationship and they did not have a will, the children will inherit a portion of the estate and the spouse may not automatically inherit everything. Common-law partners have no inheritance rights under the laws of intestacy. The intestacy rules apply to people who are married and also to those in common-law relationships, provided the parties lived together in a marriage-like relationship for a period of at least two years immediately before the death of the other person. The two-year period established by BC estate law is strictly interpreted.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at
The information on this website is for general information purposes only. Nothing on this site should be considered legal, financial, tax, medical, or any other professional advice.