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Determining who is a “spouse” under BC’s intestate laws

This article reviews the disposition of an estate with no will along with who qualifies as a spouse under BC’s intestate laws.

Estate planning is something that many British Columbia residents believe they will get around to at some point. Some make good on that intention, but others pass away before they have the chance to prepare even a simple will. When this happens, the province's intestate laws guide who will receive the assets from a deceased individual's estate and who will handle settling it.

In reading the law, the process seems straight forward, but this could be deceiving. A myriad of things could go awry, and surviving family members could end up involved in litigation regarding the estate and who will fulfill key roles.

An individual's spouse receives priority

Under BC's intestate laws, an individual's surviving spouse receives a certain share of the estate depending on the following scenarios:

· If the decedent had a spouse and no children, the spouse receives the entirety of the estate.

· If the couple had children together, the spouse receives the first $300,000 of the estate and then receives half of any remaining assets of the estate beyond that amount while the surviving children divide the remaining half equally amongst themselves.

· If the decedent had a spouse and children from a prior relationship, the spouse receives the first $150,000 of the estate and half of any remaining assets. The remaining other half is divided equally amongst any surviving children of the deceased individual.

In addition, the decedent's spouse also receives priority when it comes to appointing an executor for the estate and a guardian for any minor children. The above may seem straightforward, but the definition of "spouse" could create some controversy. Under the law, a spouse is the person who was either married to the deceased or involved in a "marriage like relationship" for a minimum of two years at some point prior to the death of the individual.

Determining whether an individual is legally considered a spouse

Without a marriage certificate, it will most likely be incumbent on the individual claiming to be a spouse to provide evidence of the "marriage-like relationship." Complicating the matter is the fact that the intestate laws do not require those in a common-law union to have lived together in the two years prior to the time of the decedent's death. The issue only gets more complicated if more than one individual qualifies as a spouse under BC's estate laws.

Other individuals who would receive shares of the estate, such as children or grandchildren, may contest the existence of the marriage-like relationship. The outcome of this particular issue will also affect whom the court may appoint as the executor of the estate and guardian of any minor children since the spouse generally takes priority with regard to these issues as well.

Seeking support may be wise

Undertaking the resolution of such matters without the benefit of legal assistance could prove problematic. A spouse or other heir facing litigation over the issue of whether the decedent was in a marriage-like relationship would greatly benefit from working with a lawyer experienced in estate administration and litigation.