Written by: Joseph Broadhurst (View All Posts
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) Published: May 26, 2017
Categorized: Common Law, Estate Planning.
Having a Will is important no what matter your circumstances are. However, when you are going through a separation from a spouse, it can be more important than ever to ensure that you have an updated Will that properly reflects your wishes and protects the interests of your family members as beneficiaries should you pass away before your divorce or separation is finalized.
Who counts as a spouse?
First things first – who are “spouses” for the purposes of estate administration? We look to the Family Law Act of British Columbia for the definition of spouses for this purpose. The FLA defines spouses as two people who are either legally married or two people who have lived in a marriage-like relationship and have done so for a continuous period of at least 2 years (commonly referred to as common law). The definition of “spouses” for other purposes such as income tax legislation may differ. For further examples where the definition may differ from the BC FLA, see Virginia Richards’ blog from September 14, 2016 “What does it mean to be a common law spouse?”
Wills and Estates Law in British Columbia
In British Columbia, the Wills, Estates and Succession Act (“WESA”) governs what happens to a person’s property when they pass away. If a person passes away and does not have a valid will, this is sometimes called “dying intestate,” then WESA has specific provisions for what happens to their property depending on their family structure. The following are a general overview of what happens if you have no will:
If you have a spouse but no descendants and no will
Your spouse gets everything in your estate.
If you have a spouse and descendants and no will
This can be complicated especially in modern blended families. The basics are that the spouse gets the furnishings of the house they are living in and a “preferential share.”
What does “preferential share” mean?
The preferential share is different based on whether the descendants of the deceased are descended from both the spouse and the deceased, or just the deceased. Once the spouse receives their “preferential share” the spouse also gets half of the remainder, and the descendants split the other half.
If you have two or more spouses
There is less guidance on this one, WESA says if you have two spouses and they are not able to agree, the court will make a decision.
If you have no spouse but descendants or relatives
Your estate gets distributed amongst your descendants.
If you have no descendants
Your estate gets distributed amongst your parents.
If you have no living parents
Your estate gets distributed to your parents’ descendants (for example your siblings).
If your parents have no descendants
Your estate is distributed to your grandparents or their descendants (for example first cousins). If no one fits that criteria, your estate gets distributed to your great-grandparents or their descendants (for example second cousins and if no one fits this criteria, except in limited circumstances, the government gets your estate.
Special rules for spousal homes
There are also special rules that apply to a spousal home. Please bear in mind that this blog post is general information only and not a way to make a succession plan. You should consult a lawyer to understand all the implications of your specific situation, and you should strongly consider getting a Will to ensure that your final wishes are respected. This is especially true if you want to leave anything to a charity or community organization, as you need a Will to do so.
Property that passes outside of your Will
Assets that have designated beneficiaries (or in some cases that are registered in joint names with another person) pass outside of a Will and do not form part of your estate. Examples of this type of asset include life insurance policies, bank accounts, certain investments accounts, etc. If you are in the middle of a separation, it is important to ensure that you update all of your designated beneficiaries. However, in some cases you may want to leave your ex-spouse in as a designated beneficiary. For example, it is possible to have a separation agreement drafted where you and your ex-spouse have reciprocal provisions that require each of you to maintain a specified amount of life insurance and to be appointed as a trustee of the other’s life insurance proceeds for the benefit of the children of the relationship. This is something you may want to discuss in more detail with an estate planning and/or family lawyer.
