Can a Surviving Spouse Stay in the Family Home When There's No Will?

Losing a spouse is hard enough without worrying about losing your home as well. If your spouse died without a will and the house was in their name, or partly in their name, you may be wondering whether you can stay.

BC's Wills, Estates and Succession Act (WESA) gives a surviving spouse specific rights to the spousal home, with a firm time limit. This guide explains who qualifies, how the right to acquire the home works, what you pay while you live there, and when a court can let you remain even if you cannot buy out the rest.

First question: does the home pass through the estate at all?

How the house was owned matters before anything else. If you and your spouse owned it as joint tenants, it generally passes to you directly by right of survivorship and does not form part of the estate; you would deal with the Land Title Office to update the title. The rules in this article matter when the deceased owned the home alone, or as a tenant in common with you or someone else.

They also apply only when the home is not dealt with by a will. Section 26 of WESA applies the spousal home rules to an intestate estate that includes a spousal home, and to an estate where the will does not gift or otherwise dispose of the home.

Who counts as a spouse, and what counts as the spousal home

Under section 2 of WESA, two people are spouses if, immediately before the death, they were married to each other or had lived together in a marriage-like relationship for at least two years. They stop being spouses if they separated: for a married couple, when an event occurs that gives rise to an interest in family property under the Family Law Act; for a marriage-like relationship, when one or both of them ended it. Our article on common-law spouses and estate claims covers the two-year test in more detail.

WESA defines the spousal home as the home in which the deceased and the surviving spouse were ordinarily resident. It covers a separately taxed parcel of land with a house on it, owned or co-owned by the deceased and not leased to someone else. It can also cover a share in a corporation that owns a building for the benefit of its shareholder-occupants, where the share corresponds to the couple's suite, and a manufactured home sitting on land its owner did not own.

What the spouse inherits when there is no will

The right to the home works alongside the spouse's ordinary share of the estate. Under section 20, if there are no surviving descendants, the whole estate goes to the spouse. Under section 21, if there are descendants, the spouse receives the household furnishings and a preferential share, then half of what remains:

• All descendants are children of both spouses. The preferential share is $300,000.
• Some descendants are not the surviving spouse's. The preferential share is $150,000, which often matters in blended families.

For the wider picture, see our guide to who inherits when someone dies without a will.

The right to acquire the spousal home

Section 26 lets the surviving spouse acquire the spousal home from the personal representative to satisfy all or part of their interest in the estate. The steps and deadlines are set out in sections 27 to 31:

• Notice to you. When the personal representative applies for the grant, they must give the surviving spouse notice of this right.
• 180-day window. You must exercise the right no later than 180 days after the grant is issued, unless the court extends the time.
• No sale in the meantime. During those 180 days (or any extension), the personal representative must not dispose of the home without your written consent, unless the other assets cannot pay the estate's debts and a mortgage on the home would not raise enough.
• Written notice from you. You exercise the right by written notice to the personal representative, the descendants entitled to share, and the Public Guardian and Trustee if any of them is a minor or mentally incapable person without a nominee. The notice must say you require the home to be transferred to you and state the value you place on the deceased's interest at the date of death.
• Disagreement on value. If the personal representative disputes your value, either of you can ask the court to decide it.
• Paying the difference. If the deceased's interest is worth more than your share of the estate, section 31 allows you to buy the rest.

As a simplified example only: suppose the deceased owned the home alone, worth $800,000, plus $200,000 in other assets after debts and expenses, and both children are children of the couple. The spouse's share would be the $300,000 preferential share plus half of the remaining $700,000, or $650,000 in total. To take the home, the spouse would need to pay about $150,000 for the balance.

What you pay while you live there

Section 32 says that a surviving spouse who lives in the home while the purchase is pending must pay, from the date of death until the purchase, the insurance, property taxes, reasonable maintenance and repairs, utilities, and the regular mortgage payments. The WESA Regulation excludes taxes on capital gains associated with the home from that list.

If you cannot afford to buy out the rest: a retention order

Where buying the balance is not realistic, section 33 lets the surviving spouse ask the court to let them keep the home. The court must be satisfied that you were ordinarily resident in the home at the death, that the estate cannot satisfy the descendants without disposing of the home, that buying it would cause you significant financial hardship, that you would suffer greater prejudice by having to leave than the descendants would by waiting for their share, and that you have a sufficient connection to the home or the community.

If those conditions are met, the court can vest the deceased's interest in you and turn the descendants' unpaid share into a registrable charge on the title, with interest. Under section 34, unless the court sets other terms, that charge becomes payable on the earliest of 12 months after your death, 12 months after you stop living there, or completion of a sale of the home.

The 180-day clock starts when the grant is issued, so talk to the personal representative early and get advice on valuation and financing before the window closes. Transferring title afterwards is a land title step as well as an estate one; our article on transferring an estate house to a beneficiary explains that part.

Living in the family home after your spouse's death? Know your options

Our probate and estate lawyers can explain your rights to the spousal home, prepare the notice and valuation steps within the time limit, and apply to the court for an extension or a retention order where needed.

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