My partner didn’t have a will. What happens to his estate?

My partner died without a will. We weren’t married, and he had three kids from another marriage. How will my partner’s assets and belongings be divided?

Maeve

Maeve

Parksville, BC

When someone dies without a will, they are said to have died intestate. The person's estate is distributed according to the mandatory scheme under this law.

With intestacy, the first step is to determine whether the deceased had a spouse. The law in BC considers two people as spouses if they were:

  • married when the deceased passed away, or

  • in a “marriage-like relationship” for at least two years prior to death.  

For a “marriage-like relationship”:

  • The two individuals could be considered to be in a marriage-like-relationship without living together.

  • They wouldn’t need to have been in  a “marriage-like relationship” for the two years immediately before the deceased’s death (but they must have been in a marriage-like relationship for two years at some point). For example, this would cover a situation where two people had lived together in a marriage-like relationship for two years, after which one of them moved out of necessity (for example to a care home), but there was no intention to separate.

Under the law, when someone dies without a will, leaving a:

  • Spouse and no children. The entire estate goes to the spouse.

  • Spouse and children with that spouse. The spouse gets the first $300,000 of the estate and half of the remainder. The other half is divided equally between the children.

  • Spouse and children from a prior relationship. The spouse gets the first $150,000 of the estate and half of the remainder. The other half is divided equally among the children.

  • No spouse, children, or grandchildren. There are other rules to figure out which next of kin may receive the estate if the deceased had no spouse, children, or grandchildren. Depending on the circumstances, it may go to their parents or siblings.

Under BC law, a person can have more than one spouse — for example, a spouse as a result of a marriage and a common-law spouse (as happened here). In such a case, the spousal share would be divided as the spouses agree or as determined by the court.

For more, see when someone dies without a will.

Hiva Parandian

Hiva Parandian

Fasken
  • Reviewed in May 2021
  • This information applies to British Columbia, Canada

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