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.
Rules of intestacy under BC estate law
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.)
Time requirement to meet the definition of a spouse under BC estate law
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).
BC estate law requires the court to take holistic view of the relationship
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.
Take home point: BC estate law, intestacy, and common-law spouses
Where a person dies without a will, BC estate law provides that the surviving spouse is to receive distribution of the intestate estate in accordance with the rules and priorities set out in Part 3 of the Wills Estates and Succession Act. 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.