Dying Without a Will in BC: How WESA Part 3 Shares Your Estate

Two paramedics in Surrey have shared a townhouse for six years, never married, and are raising a four-year-old and a baby. On a quiet evening after the kids are asleep, they sit at the kitchen counter with a parenting book and a pad of sticky notes, listing the grown-up jobs they keep postponing. One of them writes "wills?" and then pauses. Does it matter, he wonders aloud, that they never had a wedding?

In British Columbia, the answer comes from Part 3 of the Wills, Estates and Succession Act (WESA), titled "When a Person Dies Without a Will." This guide traces who counts as a spouse, how the preferential share and household furnishings work, what happens to the family home, and who inherits when there is no spouse. For how BC compares with other provinces, see our overview of dying without a will in Canada.

Who BC treats as a spouse #

BC's definition of spouse reaches beyond marriage. Under section 2(1), two people are spouses for the purposes of the Act if they were both alive immediately before the relevant time and either were married to each other, or had lived with each other in a marriage-like relationship for at least two years.^[NaN]

The Surrey couple's six years under one roof, raising children together, would likely be examined under that marriage-like relationship test. Section 2(2) also lists events after which people stop being spouses for the Act's purposes, so a couple who have separated should look at their own facts carefully.^[NaN]

A spouse and no descendants #

Section 20 is short. If a person dies without a will leaving a spouse but no surviving descendant, the intestate estate must be distributed to the spouse.^[NaN]

A spouse and descendants: furnishings, then a preferential share #

Where there are descendants, section 21(2) says the spouse receives two things first: the household furnishings, and a preferential share.^[NaN] "Household furnishings" means personal property usually associated with the spouses' enjoyment of the spousal home.

The size of the preferential share depends on whose children they are:

• $300,000 if all the descendants are descendants of both the intestate and the spouse;
• $150,000 if they are not all common to the two of them.^[NaN]

The statute adds the words "or a greater amount if prescribed." The Wills, Estates and Succession Regulation, B.C. Reg. 148/2013, prescribes only one amount, and it is for a different section, so no greater preferential share is currently prescribed there.^[NaN]

Section 21 then compares the share with the estate's net value. If the net value is less than the preferential share, the whole intestate estate goes to the spouse. If it is the same or greater, the spouse has a charge on the estate for the preferential share, and the residue is split one half to the spouse and one half to the intestate's descendants.^[NaN]

"Net value" in section 21(1) means fair market value, inside and outside BC, after deducting the household furnishings given to the spouse, charges, debts, funeral and administration expenses, and fees under the Probate Fee Act.^[NaN] To estimate those probate fees for a BC estate, try our probate fee calculator or read our guide to probate fees in BC.

Example. One of the Surrey paramedics dies without a will. The partner qualifies as a spouse under section 2, and both children are the couple's own. The surviving spouse first receives the household furnishings and then a $300,000 preferential share. If the net value is more than $300,000, the residue after that share is divided in two: one half to the spouse and one half to the two children. If the net value is less than $300,000, everything goes to the spouse.

Example 2. Change one fact: the paramedic who died also had a teenage son from an earlier relationship. Not all the descendants are now common to the intestate and the spouse, so the preferential share drops to $150,000. The spouse still receives the household furnishings first. If the net value is $150,000 or more, the spouse takes the $150,000 share, and the residue is split one half to the spouse and one half to the intestate's three children. If the net value is below $150,000, the whole intestate estate goes to the spouse.^[NaN]

When more than one person claims the spousal share #

Families are not always tidy. If two or more persons are entitled to a spousal share, section 22(1) says they share it in portions they agree on, or, if they cannot agree, as the court determines.^[NaN]

The family home #

Section 26 gives the surviving spouse a specific right: they may acquire the spousal home from the personal representative to satisfy, in whole or in part, their interest in the estate under this Division.^[NaN] That right applies to an intestate estate that includes a spousal home, and to an estate where the spousal home is not disposed of by a will.^[NaN]

No spouse: who is next in line #

Without a surviving spouse, section 23 sets an order, moving to the next group only when nobody in the earlier one survives:

1. the intestate's descendants;
2. the parents, in equal shares, or the surviving parent;
3. the descendants of the parents;
4. grandparents and their descendants;
5. great-grandparents and their descendants;
6. the government, under the Escheat Act.^[NaN]

People of the fifth or greater degree of relationship are deemed to have predeceased, but that cut-off does not limit the right of the intestate's own descendants to inherit.^[NaN]

A will that leaves gaps #

Part 3, Division 1 is not only for people with no will. Section 25 says it also applies to the part of an estate that is neither the subject of a gift nor otherwise disposed of by a will.^[NaN] An outdated will that misses a new account or property can leave that portion to be shared under the same formula. This is easy to overlook, because a will written years ago may simply say nothing about an account opened or a property bought since, and nobody notices until the estate is being settled.

Whoever ends up administering the estate can find the next steps in our complete BC executor guide.

Questions worth asking at your own counter #

A few questions show quickly which parts of Part 3 would touch your family:

• Are you married, or have you lived with your partner in a marriage-like relationship for at least two years? Section 2 decides whether your partner is a spouse at all.^[NaN]
• Are all of your children also your partner's children? That decides between the $300,000 and $150,000 preferential share.^[NaN]
• Has either of you separated from an earlier spouse? Section 2(2) may affect who still counts.
• If you already have a will, does it deal with everything you own? Section 25 sends anything it misses through the same formula.^[NaN]

Back at the kitchen counter #

The Surrey couple learned that BC's definition of spouse can reach couples who never married, and that the formula sets out fixed shares for the surviving partner and the children. What the formula could not do was reflect their own wishes in their own words. A will can. Our BC will-writing guide covers the steps, while the BC wills page sets out how we help families in the province.

If "wills?" is still sitting on a sticky note at your place, peel it off and open your will with It's Simple Will.