Intestacy (16:VIII) - Revision history

LSLAP at 19:31, 13 October 2025

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C. Miscellaneous Provisions

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	* Children conceived before the intestate's death but born after the intestate's death and living for at least 5 days, inherit as if they had been born in the lifetime of the intestate and had survived the intestate (''WESA'', s 8).		* Children conceived before the intestate's death but born after the intestate's death and living for at least 5 days, inherit as if they had been born in the lifetime of the intestate and had survived the intestate (''WESA'', s 8).
	* Adopted children are the children of the adopting parent ([https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96005_01 ''Adoption Act'', RSBC 1996, c 5, s 37]).		* Adopted children are the children of the adopting parent (''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96005_01 Adoption Act]'', RSBC 1996, c 5, s 37).
	* Adopted children are not entitled to the estate of their natural parent except through the will of the natural parent (''WESA'', s 3).		* Adopted children are not entitled to the estate of their natural parent except through the will of the natural parent (''WESA'', s 3).


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LSLAP at 17:27, 22 August 2024

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	== B. Separated ~~Spouse~~ ==		== B. Separated Spouses ==

	Under ''WESA'', two persons cease being spouses if:		Under ''WESA'', two persons cease being spouses if:

LSLAP at 02:39, 22 August 2024

2024-08-22T02:39:12Z

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	See section 23(2) for complete order of priority. If there are no beneficiaries entitled to the estate, the estate passes to the government subject to the [https://www.bclaws.gov.bc.ca/civix/document/id/rs/rs/96120_01 ''Escheat Act'', RSBC 1996, c 120].		See section 23(2) for complete order of priority. If there are no beneficiaries entitled to the estate, the estate passes to the government subject to the [https://www.bclaws.gov.bc.ca/civix/document/id/rs/rs/96120_01 ''Escheat Act'', RSBC 1996, c 120].
	\|}		\|}


	== B. Separated Spouse ==		== B. Separated Spouse ==
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	:'''NOTE:''' Married couples cease being spouses for the purposes of ''WESA'' if they separate or divorce, as s 81 of the ''Family Law Act'' indicates that an interest in family assets automatically arises on separation. See ''[https://canlii.ca/t/1w3gw Gosbjorn v. Hadley]'', 2008 BCSC 219 and more recently ''[https://canlii.ca/t/hxnc9 Mother 1 v Solus Trust Company]'', 2019 BCSC 200 at paras 149-151 for a discussion of when a marriage-like relationship ceases.		:'''NOTE:''' Married couples cease being spouses for the purposes of ''WESA'' if they separate or divorce, as s 81 of the ''Family Law Act'' indicates that an interest in family assets automatically arises on separation. See ''[https://canlii.ca/t/1w3gw Gosbjorn v. Hadley]'', 2008 BCSC 219 and more recently ''[https://canlii.ca/t/hxnc9 Mother 1 v Solus Trust Company]'', 2019 BCSC 200 at paras 149-151 for a discussion of when a marriage-like relationship ceases.


	== C. Miscellaneous Provisions ==		== C. Miscellaneous Provisions ==

LSLAP at 02:38, 22 August 2024

2024-08-22T02:38:09Z

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	== A. Generally ==		== A. Generally ==

	If a person dies intestate (without a valid will), their assets are distributed to intestate successors in accordance with ''WESA''. Where a will exists but does not cover all assets, there will be a partial intestacy and those assets outside the will that do not pass by contract or survivorship will pass according to ''~~WESA's~~'' intestacy distribution scheme.		If a person dies intestate (without a valid will), their assets are distributed to intestate successors in accordance with ''WESA''. Where a will exists but does not cover all assets, there will be a partial intestacy and those assets outside the will that do not pass by contract or survivorship will pass according to ''WESA’s'' intestacy distribution scheme.

	=== 1. Spouses ===		=== 1. Spouses ===

	Under ''WESA'', it is possible to have more than one spouse by having a spouse by marriage in addition to a common-law spouse. It is also possible to have multiple common-law spouses. However, it is not possible to have more than one spouse by marriage.		Under ''WESA'', it is possible to have more than one spouse by having a spouse by marriage in addition to a common-law spouse. It is also possible to have multiple common-law spouses. However, it is not possible to have more than one spouse by marriage.

	The spouse of the deceased is always entitled to a preferential share of the estate, as well as the “household furnishings” defined as the personal property usually associated with the enjoyment by the spouses of the spousal home (''WESA'', s 21(1)).		The spouse of the deceased is always entitled to a preferential share of the estate, as well as the “household furnishings” defined as the personal property usually associated with the enjoyment by the spouses of the spousal home (''WESA'', s 21(1)).

	If there are two or more spouses, they must agree as to how to divide the preferential share, otherwise, it will be determined by the courts (''WESA'', s 22). See ''[https://~~www.~~canlii.~~org~~/en/~~bc/bcsc/doc/2021/2021bcsc325/2021bcsc325.html~~ Boughton v Widner Estate]'', 2021 BC2C 325 for an example of the court dividing a deceased’s estate among two spouses.		If there are two or more spouses, they must agree as to how to divide the preferential share, otherwise, it will be determined by the courts (''WESA'', s 22). See [https://canlii.ca/t/jdgmq ''Boughton v Widner Estate''], 2021 BC2C 325 for an example of the court dividing a deceased’s estate among two spouses.

	=== 2. Spousal Home ===		=== 2. Spousal Home ===

	In intestacy, the surviving spouse no longer has a right to the spousal home but has a right to acquire it under section 31 of ''WESA''. Section 33 allows the surviving spouse to make an application to retain the spousal home, considering factors such as whether requiring the surviving spouse to purchase the spousal home would be a significant hardship, and whether a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate.		In intestacy, the surviving spouse no longer has a right to the spousal home but has a right to acquire it under section 31 of ''WESA''. Section 33 allows the surviving spouse to make an application to retain the spousal home, considering factors such as
			* whether requiring the surviving spouse to purchase the spousal home would be a significant hardship, and
			* whether a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate.

	=== 3. Preferential Share ===		=== 3. Preferential Share ===

	If all the descendants of the will-maker are also the descendants of the surviving spouse, the preferential share of the spouse is $300,000 (''WESA'', s 21(3)). If all the descendants of the will-maker are '''not''' also those of the surviving spouse, the preferential share of the surviving spouse is $150,000 (''WESA'', s 21(4)).		If all the descendants of the will-maker are also the descendants of the surviving spouse, the preferential share of the spouse is $300,000 or a greater amount if prescribed (''WESA'', s 21(3)). If all the descendants of the will-maker are '''not''' also those of the surviving spouse, the preferential share of the surviving spouse is $150,000 or a greater amount if prescribed (''WESA'', s 21(4)).

			The table below outlines different scenarios which impact the distribution of estate and preferential share to intestate successors in accordance with relevant sections of ''WESA''.

	{\| class="wikitable"		{\| class="wikitable"
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	\| Intestate dies leaving a spouse but no descendants.		\| Intestate dies leaving a spouse but no descendants.
	\| 20		\| 20
	\| Entire estate passes to surviving spouse.		\| Entire estate passes to the surviving spouse.
	\|-		\|-
	\| Intestate dies leaving one or more descendants, all of whom are descendants of the surviving spouse.		\| Intestate dies leaving one or more descendants, all of whom are descendants of the surviving spouse.
	\| 21(3)		\| 21(3)
	\| Household furnishings plus preferential share of $300,000 to the spouse. One half of remainder distributed to the spouse, the other half distributed equally to the descendants.		\| Household furnishings plus preferential share of $300,000 to the spouse. One half of the remainder is distributed to the spouse, the other half is distributed equally to the descendants.<BR>
			::'''Note:''' If the net value of an intestate estate is less than the spouse's preferential share, the estate is distributed to the spouse.
	\|-		\|-
	\| Intestate dies leaving one or more descendants, some of whom are '''NOT''' descendants of the surviving spouse.		\| Intestate dies leaving one or more descendants, some of whom are '''NOT''' descendants of the surviving spouse.
	\| 21(4)		\| 21(4)
	\| Household furnishings plus preferential share of $150,000 to the spouse. One half of remainder distributed to the spouse, the other half distributed equally to the descendants.		\| Household furnishings plus preferential share of $150,000 are distributed to the spouse. One half of the remainder is distributed to the spouse, the other half is distributed equally to the descendants.<BR>
			::'''Note:''' If the net value of an intestate estate is less than the spouse's preferential share, the estate is distributed to the spouse.
	\|-		\|-
	\| Intestate dies, leaving descendants but no spouse.		\| Intestate dies, leaving descendants but no spouse.
	\| 23(2)(a)		\| 23(2)(a)
	\| Estate distributed equally to descendants.		\| Estate is distributed equally to descendants.
	\|-		\|-
	\| Intestate dies leaving no spouse or descendants.		\| Intestate dies leaving no spouse or descendants.
	\| 23(2)		\| 23(2)
	\| Order of Priority: Parents, siblings, nieces/nephews, grandparents, aunts/uncles, etc. See section 23(2) for complete order of priority. If there are no beneficiaries entitled to the estate, the estate passes to the government subject to the ''Escheat Act'', RSBC 1996, ~~c120~~.		\| '''Order of Priority:''' Parents, siblings, nieces/nephews, grandparents, aunts/uncles, etc.<BR>
			See section 23(2) for complete order of priority. If there are no beneficiaries entitled to the estate, the estate passes to the government subject to the [https://www.bclaws.gov.bc.ca/civix/document/id/rs/rs/96120_01 ''Escheat Act'', RSBC 1996, c 120].
	\|}		\|}

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	Under ''WESA'', two persons cease being spouses if:		Under ''WESA'', two persons cease being spouses if:
	* In the case of a marriage an event occurs that causes an interest in family property, as defined in Part 5 [''Property Division''] of the ''Family Law Act'', to arise pursuant to section 2(2)(a) of ''WESA'', '''or'''		* In the case of a marriage an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_00 ''Family Law Act''], to arise pursuant to section 2(2)(a) of ''WESA'', '''or'''
	* In the case of a marriage-like relationship, one or both persons terminate the relationship.		* In the case of a marriage-like relationship, one or both persons terminate the relationship.

	:'''NOTE:''' Married couples cease being spouses for the purposes of WESA if they separate or divorce, as s 81 of the Family Law Act indicates that an interest in family assets automatically arises on separation. See ''[https://~~www.~~canlii.~~org/en/bc~~/~~bcsc~~/~~doc/2008/2008bcsc219/2008bcsc219.html?autocompleteStr=Gosbjorn%20v.%20Hadley%2C%202008%20BCSC%20219%20&autocompletePos=1~~ Gosbjorn v. Hadley]'', 2008 BCSC 219 and more recently ''[https://~~www.~~canlii.~~org/en/bc/bcsc/doc~~/~~2019~~/~~2019bcsc200/2019bcsc200.html?autocompleteStr=Mother%201%20v%20Solus%20Trust%20Company%2C%202019%20BCSC%20200%20&autocompletePos=1~~ Mother 1 v Solus Trust Company]'', 2019 BCSC 200 at paras 149-151 for a discussion of when a marriage-like relationship ceases.		:'''NOTE:''' Married couples cease being spouses for the purposes of ''WESA'' if they separate or divorce, as s 81 of the ''Family Law Act'' indicates that an interest in family assets automatically arises on separation. See ''[https://canlii.ca/t/1w3gw Gosbjorn v. Hadley]'', 2008 BCSC 219 and more recently ''[https://canlii.ca/t/hxnc9 Mother 1 v Solus Trust Company]'', 2019 BCSC 200 at paras 149-151 for a discussion of when a marriage-like relationship ceases.

	== C. Miscellaneous Provisions ==		== C. Miscellaneous Provisions ==

	*Children conceived before the intestate's death but born after the intestate's death and living for at least 5 days, inherit as if they had been born in the lifetime of the intestate and had survived the intestate (''WESA'', s 8).		* Children conceived before the intestate's death but born after the intestate's death and living for at least 5 days, inherit as if they had been born in the lifetime of the intestate and had survived the intestate (''WESA'', s 8).
	*Adopted children are the children of the adopting parent (''Adoption Act'', RSBC 1996, c 5, s 37).		* Adopted children are the children of the adopting parent ([https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96005_01 ''Adoption Act'', RSBC 1996, c 5, s 37]).
	*Adopted children are not entitled to the estate of their natural parent except through the will of the natural parent (''WESA'', s 3).		* Adopted children are not entitled to the estate of their natural parent except through the will of the natural parent (''WESA'', s 3).


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Clicklaw Editor at 21:21, 29 August 2023

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LSLAP at 00:15, 25 August 2023

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	Under ''WESA'', two persons cease being spouses if:		Under ''WESA'', two persons cease being spouses if:
	* In the case of a marriage~~, they live separate and apart for at least two years, with '''one or both of them''' having formed the intention during that time to live separate and apart '''permanently''', or~~ an event occurs that causes an interest in family property, as defined in Part 5 [''Property Division''] of the ''Family Law Act'', to arise pursuant to section 2(2)(a) of ''WESA'', '''or'''		* In the case of a marriage an event occurs that causes an interest in family property, as defined in Part 5 [''Property Division''] of the ''Family Law Act'', to arise pursuant to section 2(2)(a) of ''WESA'', '''or'''
	* In the case of a marriage-like relationship, one or both persons terminate the relationship.		* In the case of a marriage-like relationship, one or both persons terminate the relationship.

	:'''NOTE:''' See ''[https://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc219/2008bcsc219.html?autocompleteStr=Gosbjorn%20v.%20Hadley%2C%202008%20BCSC%20219%20&autocompletePos=1 Gosbjorn v. Hadley]'', 2008 BCSC 219 and more recently ''[https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc200/2019bcsc200.html?autocompleteStr=Mother%201%20v%20Solus%20Trust%20Company%2C%202019%20BCSC%20200%20&autocompletePos=1 Mother 1 v Solus Trust Company]'', 2019 BCSC 200 at paras 149-151 for a discussion of when a marriage-like relationship ceases.		:'''NOTE:''' Married couples cease being spouses for the purposes of WESA if they separate or divorce, as s 81 of the Family Law Act indicates that an interest in family assets automatically arises on separation. See ''[https://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc219/2008bcsc219.html?autocompleteStr=Gosbjorn%20v.%20Hadley%2C%202008%20BCSC%20219%20&autocompletePos=1 Gosbjorn v. Hadley]'', 2008 BCSC 219 and more recently ''[https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc200/2019bcsc200.html?autocompleteStr=Mother%201%20v%20Solus%20Trust%20Company%2C%202019%20BCSC%20200%20&autocompletePos=1 Mother 1 v Solus Trust Company]'', 2019 BCSC 200 at paras 149-151 for a discussion of when a marriage-like relationship ceases.

	== C. Miscellaneous Provisions ==		== C. Miscellaneous Provisions ==

Clicklaw Editor: Clicklaw Editor moved page Intestacy (16:VII) to Intestacy (16:VIII) over redirect

2023-07-28T20:58:03Z

Clicklaw Editor moved page Intestacy (16:VII) to Intestacy (16:VIII) over redirect

← Older revision	Revision as of 20:58, 28 July 2023
(No difference)

Clicklaw Editor at 21:27, 11 October 2022

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	*Adopted children are the children of the adopting parent (''Adoption Act'', RSBC 1996, c 5, s 37).		*Adopted children are the children of the adopting parent (''Adoption Act'', RSBC 1996, c 5, s 37).
	*Adopted children are not entitled to the estate of their natural parent except through the will of the natural parent (''WESA'', s 3).		*Adopted children are not entitled to the estate of their natural parent except through the will of the natural parent (''WESA'', s 3).


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Desy Wahyuni at 21:18, 13 August 2021

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	\| Intestate dies leaving no spouse or descendants.		\| Intestate dies leaving no spouse or descendants.
	\| 23(2)		\| 23(2)
	\| Order of Priority: Parents, siblings, nieces/nephews, grandparents, aunts/uncles, etc. See section 23(2) for complete order of priority. If there are no beneficiaries entitled to the estate, the estate passes to the government subject to the ~~escheat act~~.		\| Order of Priority: Parents, siblings, nieces/nephews, grandparents, aunts/uncles, etc. See section 23(2) for complete order of priority. If there are no beneficiaries entitled to the estate, the estate passes to the government subject to the ''Escheat Act'', RSBC 1996, c120.
	\|}		\|}

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	Under ''WESA'', two persons cease being spouses if:		Under ''WESA'', two persons cease being spouses if:
	# In the case of a marriage, they live separate and apart for at least two years, with '''one or both of them''' having formed the intention during that time to live separate and apart '''permanently''', or an event occurs that causes an interest in family property, as defined in Part 5 [''Property Division''] of the ''Family Law Act'', to arise pursuant to section 2(2)(a) of ''WESA'', '''or'''		* In the case of a marriage, they live separate and apart for at least two years, with '''one or both of them''' having formed the intention during that time to live separate and apart '''permanently''', or an event occurs that causes an interest in family property, as defined in Part 5 [''Property Division''] of the ''Family Law Act'', to arise pursuant to section 2(2)(a) of ''WESA'', '''or'''
	# In the case of a marriage-like relationship, one or both persons terminate the relationship.		* In the case of a marriage-like relationship, one or both persons terminate the relationship.

	:'''NOTE:''' See ''[https://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc219/2008bcsc219.html?autocompleteStr=Gosbjorn%20v.%20Hadley%2C%202008%20BCSC%20219%20&autocompletePos=1 Gosbjorn v. Hadley]'', 2008 BCSC 219 and more recently ''[https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc200/2019bcsc200.html?autocompleteStr=Mother%201%20v%20Solus%20Trust%20Company%2C%202019%20BCSC%20200%20&autocompletePos=1 Mother 1 v Solus Trust Company]'', 2019 BCSC 200 at paras 149-151 for a discussion of when a marriage-like relationship ceases.		:'''NOTE:''' See ''[https://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc219/2008bcsc219.html?autocompleteStr=Gosbjorn%20v.%20Hadley%2C%202008%20BCSC%20219%20&autocompletePos=1 Gosbjorn v. Hadley]'', 2008 BCSC 219 and more recently ''[https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc200/2019bcsc200.html?autocompleteStr=Mother%201%20v%20Solus%20Trust%20Company%2C%202019%20BCSC%20200%20&autocompletePos=1 Mother 1 v Solus Trust Company]'', 2019 BCSC 200 at paras 149-151 for a discussion of when a marriage-like relationship ceases.
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	== C. Miscellaneous Provisions ==		== C. Miscellaneous Provisions ==

	*Children conceived before the intestate's death but born after the intestate's death and living for at least 5 days, inherit as if they had been born in the lifetime of the intestate and had survived the intestate., (''WESA'', s 8).		*Children conceived before the intestate's death but born after the intestate's death and living for at least 5 days, inherit as if they had been born in the lifetime of the intestate and had survived the intestate (''WESA'', s 8).
	*Adopted children are the children of the adopting parent (''Adoption Act'', s 37).		*Adopted children are the children of the adopting parent (''Adoption Act'', RSBC 1996, c 5, s 37).
	*Adopted children are not entitled to the estate of their natural parent except through the will of the natural parent (''WESA'', s 3).		*Adopted children are not entitled to the estate of their natural parent except through the will of the natural parent (''WESA'', s 3).

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