Intestacy (16:VIII)
A. Generally
If a person dies intestate (without a valid will), his or her 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 distribution.
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.
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).
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.
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)).
| Situation | WESA Section | Distribution |
|---|---|---|
| Intestate dies leaving a spouse but no descendants. | 20 | Entire estate passes to surviving spouse. |
| Intestate dies leaving one or more descendants, all of whom are descendants of the surviving spouse. | 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. |
| Intestate dies leaving one or more descendants, some of whom are NOT descendants of the surviving spouse. | 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. |
| Intestate dies, leaving descendants but no spouse. | 23(2)(a) | Estate distributed equally to descendants. |
| Intestate dies leaving no spouse or descendants. | 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. |
B. Separated Spouse
Under WESA, two persons cease being spouses if:
- a) 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.
- b) In the case of a marriage-like relationship, one or both persons terminate the relationship.
- NOTE: See Gosbjorn v. Hadley, 2008 BCSC 219 for a list of factors used to determine if a relationship has ended.
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).
- Adopted children are the children of the adopting parent (Adoption Act, 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).
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