Common-Law Spouse After a Death: Proving a Marriage-Like Relationship in BC

When someone dies without being married to their partner, the first question in the estate is often whether that partner legally counts as a spouse. The answer can decide who inherits, who administers the estate and who can challenge the will.

This guide is for surviving partners and for the deceased's children who may disagree about the relationship. It explains the test under BC's estate law, what a spouse can claim, and the deadlines that apply.

Who counts as a spouse under WESA

Under section 2 of the Wills, Estates and Succession Act (WESA), two people are spouses if, immediately before one of them died, they were married to each other or had lived with each other in a marriage-like relationship for at least two years.

Spousal status can also end. A marriage-like relationship ends for estate purposes when one or both partners terminate the relationship. A brief attempt at reconciliation does not necessarily restart the clock: spouses are not treated as separated if, within one year after separating, they live together again mainly to reconcile and do so for one or more periods totalling at least 90 days.

So the dispute usually turns on two questions: did the relationship last two years, and was it still going at the date of death?

Proving a marriage-like relationship

There is no registration or certificate for a common-law relationship. Courts look at the relationship as a whole, and no single factor decides it. Our article on the marriage-like relationship test in BC explains the factors in detail. In an estate dispute, the evidence often includes:

• Living arrangements: a shared address, lease or title, and how long you lived together.
• Finances: joint accounts, shared bills, support of one another, and how you described yourselves on tax returns and benefit forms.
• Paperwork naming each other: beneficiary designations, powers of attorney, representation agreements, insurance and pension forms.
• How you lived publicly: family events, holidays, cards and photos, and what friends and relatives understood the relationship to be.

The deceased can no longer give their side, so documents carry a lot of weight. A survivor should gather them early, before accounts are closed and the home is cleared.

What a spouse can claim if there is no will

If the deceased left no will, a surviving spouse is near the front of the line:

• No descendants: the whole estate goes to the spouse.
• With descendants: the spouse receives the household furnishings and a preferential share of $300,000 if all the descendants are descendants of both partners, or $150,000 if they are not. Anything above that is split, half to the spouse and half to the descendants.
• The family home: the surviving spouse has a right to acquire the spousal home from the estate, generally within 180 days after the grant is issued.
• Administration: a spouse, or a person the spouse nominates, has first priority to apply to administer the estate.

If the deceased was still married to someone else and had not separated, there may be two spouses. WESA lets them agree on how to share the spousal share, or the court decides.

What a spouse can claim if there is a will

If the will leaves the partner little or nothing, a spouse can apply to vary the will on the basis that it does not make adequate provision for the spouse's proper maintenance and support. The claim must be started within 180 days after the representation grant (usually a grant of probate) is issued in BC, and served on the executor within 30 days after that period ends. See our guide to contesting a will in BC.

Separation also affects wills. If the partners stop being spouses after the will is made, a gift to the former spouse, or their appointment as executor, is revoked unless the will shows a contrary intention. A later reconciliation does not revive it.

When the deceased's children dispute the relationship

Children and other relatives often see the relationship differently from the survivor. They may say it lasted less than two years, that it was a friendship or a living arrangement rather than a marriage-like relationship, or that it had ended before the death. These disputes are decided in the Supreme Court on evidence, and both sides benefit from early legal advice and an honest look at the documents.

Some assets pass outside the estate, such as joint accounts and assets with a named beneficiary, and federal benefits use their own definitions. The Canada Pension Plan, for example, treats a person as a common-law partner after one continuous year of living together in a conjugal relationship. Each claim needs its own analysis.

Act within the deadlines

Estate timelines are short. A survivor should get advice before signing releases or agreeing to a distribution, and should not wait for the executor to raise the question of spousal status. If you are an executor or a child of the deceased, deal with the issue openly: an estate distributed without resolving it can be exposed to later claims.

Unsure whether you are a spouse for the estate? Get advice early

Our probate and estate lawyers can review the evidence of the relationship, explain your rights or obligations under WESA, and help you resolve a spousal-status dispute or bring or defend a claim.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.