Who is a Spouse Under WESA?

When someone dies without a will, that person is said to have died “intestate” and their estate must be distributed according to the BC Wills, Estates and Succession Act (WESA). According to Section 20 of WESA, the estate of a spouse who has died without a will and with no surviving descendants must be distributed entirely to the surviving spouse.

If the deceased was survived by their spouse and one or more descendant(s), the situation becomes more complicated. The surviving spouse is still entitled to receive household furnishings and a preferential share of the estate. The “preferential share,” however, may differ depending on whether the descendants were common to the deceased and the surviving spouse, or from the deceased spouse’s previous relationship(s).

But who is a “spouse” under the WESA?

Definition of a “Spouse” Under WESA

According to WESA s. 2, two individuals may be considered “spouses” if either

1.  they were legally married; or
2.  they had lived in a marriage-like (i.e., common law) relationship for at least two years.

For the purposes of the rules of succession on intestacy, “marriage-like” spouses are treated in the same manner as persons who are married. The surviving spouse of a person who dies without a will is entitled to be either the sole beneficiary of the estate or the beneficiary of a preferential share of the estate (if the deceased was also survived by children).

Bear in mind, however, that a “marriage-like” relationship as defined under WESA s. 2 may exist even if the deceased remained legally married to another person at the time of death. The BC Court of Appeal in Austin v Goerz noted, for instance, that

“intestacy legislation has always recognized that concurrent claims can be made by both the lawful married partner of the deceased and by a person whose entitlement is advanced on the basis of a marital equivalent relationship with the deceased.”

If there are two or more spouses, then WESA s. 22 provides that the spouses share their entitlements in proportions agreed to. If an agreement cannot be reached between the spouses, then it is up to the courts to determine how to distribute the estate among the purported spouses. A frequent point of contention then becomes establishing whether a “marriage-like” relationship ever even existed.

Indicators of a “Marriage-Like” Relationship

The courts have paid significant attention to the indicators of a “marriage-like” relationship over the years. However, in 2017, the BC Supreme Court noted in Connor Estate that one could not simply conclude the existence or non-existence of a “marriage-like” relationship by ticking off boxes on a checklist.

“[N]o two cases are identical,” the Court stated.

In Connor Estate, although the plaintiff and the deceased had a relationship that lasted over twenty years, they never shared a home together owing to Ms. Connor’s hoarding illness. In that matter, Justice Kent commented that “marriage-like relationships can come in many and various shapes” and determined that the plaintiff was Ms. Connor’s “marriage-like” spouse because

“the evidence was clear that the relationship…was of great importance to both of them.”

The same reasoning was taken up more recently in the case of Robledano v Jacinto, where it was found that two same-sex partners who had ‘breaks’ but continued to be a significant part of each other’s lives could be considered to “marriage-like” spouses. 

It follows from the above that cohabitation and financial dependence (or lack thereof), or a continuous, unbroken partnership may not necessarily be determinative of the existence of a “marriage-like” relationship in the eyes of the court. In Neufeld v Dafoe, Justice McEwan also found that the proof of a marriage-like relationship lay as much in how others saw them as in how they saw themselves.

Other indicators of a marriage-like relationship include the sexual and personal behaviour of the couple, the services they rendered for each other and their social activities.

WESA also establishes rules that determine whether a spousal relationship has ended for the purposes of intestate succession.  In other words, if your spousal relationship has ended according to the law, you are no longer a spouse and are not entitled to share in the deceased’s estate. 

Notably, WESA sets a somewhat different test for determining the ending of a married spousal relationship than the test for the ending of a marriage-like spousal relationship.  You are no longer a married spouse for these purposes if you “separated” from your spouse before he or she died. However, marriage-like spousal relationships no longer exist if “one or both persons terminate the relationship”.  

The lawyers at McLarty Wolf recently went to trial on behalf of two young children to litigate whether a woman (not their mother) who claimed to be a marriage-like relationship with their deceased father was, in fact, a spouse.  Justice Myers held that the woman was not a spouse. The rather unusual fact pattern of this case can be read here: Mother 1 v. Solus Trust. 

If You’ve Lost Your Spouse Who Did Not Leave a Will, Contact Us Today

At McLarty Wolf, we know that there are emotional, psychological and financial costs to proving that your relationship with a deceased loved one was bona fide and meaningful. If you have questions regarding your entitlement to a share of a loved one’s estate or are facing hurdles to earning your entitlements under WESA, contact us at 1-877-230-5383 or use our online contact form and our team will give you a call to schedule a free initial consultation.