Marriage, separation, and family structure significantly impact and complicate estate litigation. Whether you’re planning your estate or navigating the loss of a loved one, understanding how marriage impacts wills is essential. In British Columbia, legal spouses, common-law partners, former partners, and children may all have or lack rights to assets following a death, depending on the circumstances. The laws around wills and inheritance, detailed in the Wills, Estates, and Succession Act (WESA), are very complex and only become more so when situations like blended families, separations, or informal relationships are involved. Below are some common questions answered to provide you with valuable information as you consider your own will or work toward challenging a will following a death.
Does a Spouse Automatically Inherit Everything?
Not necessarily. A spouse only inherits everything from their significant other if the deceased partner passes away without a will and doesn’t have any children.
If the surviving spouse had children with the deceased and the deceased had no will, the surviving spouse earns a preferential share of the deceased’s estate through intestacy rules. This means they will receive all household furnishings in addition to the first $300,000 of the estate. If any children are from another relationship, the surviving spouse only receives the first $150,000 of the estate. The remaining assets are split, with half going to the surviving spouse and the other half divided equally amongst all the children.
Asset ownership also impacts how much of an estate a surviving spouse is entitled to. For example, when spouses jointly own property, such as their marital home, the surviving co-owner automatically inherits the deceased’s share. The same is true for joint bank accounts; the surviving co-owner retains control over funds in the joint account.
However, when assets are not jointly owned, these assets must go through the estate and either follow the terms of a will (if there is one) or go through intestacy rules.
What If There Is No Surviving Spouse or Child(ren)?
If someone passes away without a will and there isn’t a surviving spouse or children, the estate passes to other surviving relatives in a specific order:
- Parents
- Siblings (or their descendants if the siblings are pre-deceased)
- Grandparents (or their descendants if the grandparents are pre-deceased)
- Great-grandparents (or their descendants if the great-grandparents are pre-deceased)
If a person dies without a will and has no surviving relatives, their estate escheats to the provincial government, meaning the assets of the deceased become the property of the government.
What Rights Do Biological and Adopted Children Have?
Biological and legally adopted children are always considered part of a person’s immediate family under WESA. Therefore, they can inherit assets under intestacy rules and also have the right to challenge a will under Section 60 of WESA if they believe they haven’t been adequately, justly, and equitably supported in their deceased parent’s will. Section 60 dictates that a court can override a will if it doesn’t adequately provide for the deceased’s spouse or children.
Do Stepchildren Have Any Inheritance Rights?
Not by default. Stepchildren either need to be legally adopted by the deceased or be explicitly named in the deceased’s will as a beneficiary to receive an inheritance.
What Is a Common-Law Spouse Entitled To?
A common-law spouse is defined as someone who lives in a marriage-like relationship with someone for at least two years before death. These individuals are entitled to the same rights as a legally married spouse.
What Happens If Someone Has More Than One Spouse at the Time of Death?
Someone can have more than one legal “spouse” in BC. A common example is when someone is separated from one legal spouse but living with a common-law spouse. Both may have legal standing to claim part of the deceased’s estate. These situations likely require a court to determine asset awards to both individuals.
Does Marriage Revoke a Will?
Not anymore. This was true before WESA was enacted in 2014. Under the current law, getting married no longer cancels an existing will. Unless someone updates their will after marriage, it will still reflect old beneficiaries and decisions that don’t include the new spouse. That said, a spouse who is excluded or inadequately provided for can contest a will under WESA’s Section 60, detailed above.
What Happens to a Will After Divorce or Separation?
Divorce or a permanent end to a common-law relationship does not revoke a will, but it does cancel any gifts or executor appointments made to the former spouse unless the deceased’s will states otherwise. Importantly, individuals are not considered separated if they start living together again for at least 90 days within one year of the separation event.
Is Inheritance Considered Marital Property?
Generally, an inheritance is considered excluded property rather than family property under the Family Law Act. Family property refers to assets jointly owned by spouses or individually owned by one spouse. However, there are a few notable exceptions to this rule:
- Commingled funds: If money from an inheritance is deposited into a joint account rather than a separate account, these funds will likely lose their excluded status.
- Value increases: If the inherited property increases in value during the relationship, that increase is considered family property. The original inheritance amount would be retained by the original beneficiary, but the “profit” would be shared.
- Inheritance gifts: If someone gives an inheritance to their spouse, the inheritance is no longer excluded property.
When to Work With an Estate Litigation Lawyer
If you think you may be entitled to assets in an estate, contact Stephens & Holman. We’ll review your situation, let you know if you have a valid claim, and work through the next steps. Consultations are free, so reach out to one of our offices to schedule an appointment.