Some couples live together in a committed relationship without ever getting legally married. In British Columbia, common-law partners might assume that their relationship automatically grants them the same inheritance rights as a legally married spouse. Reality is a bit more nuanced.
While provincial legislation recognises “marriage-like relationships” for many estate litigation purposes, the existence or wording of a will can significantly affect what a partner receives…to a degree. A will doesn’t always override a partner’s rights, but it can complicate them depending on the circumstances. Without a will, BC’s intestacy rules determine who inherits what.
Understanding these rules is crucial for anyone navigating estate planning or dealing with the death of a common-law partner.
What Is a Common-Law Marriage In BC?
Under the Wills, Estates, and Succession Act (WESA), a common-law partner is treated like a married spouse for estate purposes if they have been involved in a marriage-like relationship for at least two years. This two-year period does not have to immediately precede the deceased’s passing. Common-law partners share the same estate rights as legally married spouses, including the right to challenge a will for a greater share.
When necessary, courts review the overall nature of the relationship between the supposed common-law spouse and the deceased, applying several factors to determine if the relationship is legitimate under WESA. These factors include:
- Financial interdependence between partners.
- Shared residence and domestic arrangements.
- How the couple presents themselves publicly.
- The degree of intimacy and emotional commitment.
Common Law Partner Rights After Death When a Valid Will Is Present
A properly executed will generally governs how a testator’s (or will-maker’s) property and assets are distributed, subject to statutory constraints. However, just because a valid will exists does not automatically mean that a common-law partner is excluded. In BC, the law protects dependents, including spouses and children, if adequate provisions were not made for them by the will-maker.
Under Section 60 of WESA, a surviving spouse (including a common-law partner who lived with the deceased in a marriage-like relationship for at least two years) or a child may ask the court to vary or change a will.
A common-law partner can file a wills variation claim within 180 days of the grant of probate. If the court chooses to review the case, it may order a more just and equitable distribution of assets if the version of the will in question fails to provide fair financial support to the spouse. The court will make a determination based on:
- The length and nature of the relationship.
- Both the financial and non-financial contributions made by each individual during the relationship.
- The surviving partner’s financial need or dependence on the deceased.
- Any competing claims by children or other beneficiaries.
Let’s consider a few common scenarios for context.
- Example 1: If a will leaves a long-term common-law partner nothing despite years of cohabitation, the surviving partner may successfully apply to vary the will to receive a fair share.
- Example 2: When a will gives a partner a smaller portion than they would receive under BC’s intestacy rules, the court may adjust the distribution to ensure adequate provision.
- Example 3: In cases where the will gifts specific property, such as a vehicle or household items, but provides no financial support, the court may award additional assets or funds to meet the partner’s reasonable needs.
What Happens If a Common-Law Partner Dies Without a Will?
If a common law partner dies without a will, BC’s intestacy rules under WESA determine how the estate is distributed. For common-law partners, this can be a complicated situation, especially if there are children or if more than one person qualifies as a spouse.
Under WESA, a surviving common-law partner has many of the same inheritance rights as a legally married spouse. The law determines what they receive based on the family structure at the time of death:
If there are no descendants (children or grandchildren), the entire estate goes to the spouse. If there are descendants, the spouse is entitled to all of the household furnishings, a preferential share of the estate, and half of the remaining estate after the preferential share is distributed, with the other half divided among descendants. The preferential share amounts to $300,000 if the descendants are shared between the deceased and the surviving spouse, or $150,000 if they are not. In cases where the total estate is worth less than the preferential share, the spouse inherits everything.
WESA also provides the surviving spouse with flexibility regarding the family home. The spouse may elect to have the home, or part of its value, count toward their share of the estate, allowing them to remain in the property if possible. In situations where more than one person qualifies as a spouse, the law does not automatically give one person priority. Section 22 of WESA allows the court to decide how the estate or preferential share should be divided between them, based on the circumstances.
When to Contact an Estate Litigation Lawyer
If you believe you are entitled to an inheritance or feel that you were not fairly provided for as a common-law partner, it is important to seek legal guidance. Stephens & Holman has decades of experience helping clients navigate disputes over wills, intestacy, and dependent claims. Our team can help ensure that your rights are protected and that any claim for variation or estate entitlement is handled effectively and efficiently.