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Difference between revisions of "Intestacy (16:VIII)"
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Updated based on 2017 edition
Desy Wahyuni (talk | contribs) |
Desy Wahyuni (talk | contribs) (Updated based on 2017 edition) |
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== A. Generally == | == 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. | 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 === | === 1. Spouses === | ||
Under WESA, it is possible to have more than one spouse. | 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)). | ||
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=== 3. Preferential Share === | === 3. Preferential Share === | ||
If all the descendants of the | 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)). | ||
{| 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 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 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. | | 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 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. | | Intestate dies, leaving descendants but no spouse. | ||
| 23(2)(a) | | 23(2)(a) | ||
| Estate distributed equally to descendants | | Estate distributed equally to descendants. | ||
|- | |- | ||
| Intestate dies leaving no spouse or descendants. | | Intestate dies leaving no spouse or descendants. | ||
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Under WESA, two persons cease being spouses if: | 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 WESA s 2(2)(a). | |||
: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. | :'''NOTE:''' See ''Gosbjorn v. Hadley'', 2008 BCSC 219 for a list of factors used to determine if a relationship has ended. | ||
== C. Miscellaneous Provisions == | == C. Miscellaneous Provisions == | ||