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Partner Died Without a Will in BC: Common-Law Partner’s Inheritance at Risk 

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  • Partner Died Without a Will in BC: Common-Law Partner’s Inheritance at Risk 

When a person has died without a will in BC – known as dying “intestate” – it results in the deceased person’s estate being distributed according to the priorities set out in the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”). A spouse is generally first in line to inherit where the other spouse has died without a will in BC. If partners are not married to each other, there is a risk that the surviving partner may not meet the definition of “spouse” in WESA, and thus not inherit – even if the deceased partner intended for the surviving partner to “be taken care of”. That risk arose in Richardson Estate (Re)2014 BCSC 216, where the brother of the deceased challenged the surviving partner’s claim to the estate.

Richardson Estate: Partner died without a will in BC

As the result of an accident in 2014, Mr. Richardson (who had no children of his own) died without a will in BC. Ms. Chen said she was his common-law spouse. As a common law spouse, she would be first in line to benefit from his estate. Mr. Richardson’s brother disputed that Ms. Chen was the common-law spouse of Mr. Richardson. If the brother’s challenge was successful, he would be beneficiary of Mr. Richardson’s estate.

WESA applies when a person has died without a will in BC

If a person has died without a will in BC leaving a spouse but no surviving descendant, s. 20 of WESA states that the intestate estate must be distributed to the spouse. The definition of “spouse” is set out in s. 2 of WESA; it requires that the two people be married to each other, or to have lived with each other in a “marriage-like” relationship for at least two years. Can a person be “living with another person in a marriage-like relationship” while maintaining separate residences?

Separate residences and finances form basis of challenge

When Mr. Richardson died, he and Ms. Chen had been in an intimate relationship for over 15 years, but they were not married. Two aspects of their relationship gave rise to the brother’s dispute: first, he alleged that the couple did not co-mingle their finances, and second, he pointed out that they maintained separate residences. Mr. Richardson lived and worked on Gambier Island, BC, while Ms. Chen lived and worked in Surrey, BC. The brother put particular emphasis on the dual residences to argue that there was no marriage-like relationship – in other words, that Ms. Chen was not the spouse of Mr. Richardson so could not be a beneficiary of his intestate estate.

Determining if the relationship was “marriage-like”

To decide who would inherit Mr. Richardson’s estate, the court was required to determine whether Ms. Chen and Mr. Richardson’s relationship was “marriage-like.” When it comes to partners who were not married to each other, the court looks to the definition of “spouse” in WESA (set out above). However, even with that guidance, the determination as to whether a relationship is marriage-like must be decided upon its own facts, using a flexible approach that considers the subjective intentions of the partners and analyzes the objective criteria in the evidence. Generally accepted elements of a common-law relationship include shared residences, sexual and personal behaviour, social activities, economic support, and societal perception of the couple (see here for a more detailed discussion of the elements).

Was the deceased’s partner his “spouse”?

Yes. Ms. Chen was the spouse of Mr. Richardson so in accordance with s. 20 of WESA, his intestate estate was to be distributed to her. The law recognizes that the elements of a common-law relationship may be present in varying degrees and not all are necessary for the relationship to be found conjugal or “marriage-like”. People are unique and structure their relationships differently. In some relationships there is a complete blending of finances and property, while in others, property and finances kept separate.

In Richardson Estate, all of the evidence taken together supported a finding of a marriage-like relationship (e.g., compelling evidence of community recognition of the relationship; shared vacations and retirement plans; an informal “marriage ceremony” in China). There was evidence of financial co-mingling, despite the brother’s allegations. On the dual residence issue, the court concluded that the two residences were explained in large part by work and family obligations. The court accepted that it was difficult to find work on Gambier Island and “almost impossible for women” so Ms. Chen and Mr. Richardson had structured their relationship to allow them to work in two locations and look after their respective families in those locations.

Take home point if unmarried partner died without a will in BC

When an unmarried partner dies without a will in BC, the status of the surviving partner as a “spouse” may be challenged. This puts the surviving partner’s right to inherit the intestate estate at risk. Where status as a “spouse” is disputed, the court must examine all of the facts and circumstances to determining whether a couple shared their lives to the extent that they were in a marriage-like relationship. The law is clear that living under one roof is not a prerequisite to finding that two individuals were living in a marriage-like relationship, nor is financial dependence a necessary component of a marriage-like relationship.


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