Qualification as a “spouse” can result in significant legal rights and obligations. This is particularly important if a relationship has ended either by choice (separation) or by circumstance (death). This post focuses on the latter and why it matters for your estate.

Definition in wesa

According to Section 2 of the Wills, Estates and Succession Act (“WESA”), two individuals are considered “spouses” if at the time of a death they:

1. Were legally married (and not separated); or
2. Living in a marriage-like relationship for at least two years.

Most couples are aware if they signed a marriage license and participated in a wedding ceremony. Unless there is a question of mental capacity at the time of marrying or a subsequent separation, “legally married” is straightforward.

On the other hand, whether a relationship qualifies as “marriage-like” is one of the most common issues our estate litigation lawyers are asked about.

What is “Marriage-Like”?

Many people think of “marriage-like” (or “common law”) relationships as cohabitation. On the contrary, living under the same roof -or even in the same country- is not a requirement to qualify as a spouse.

In Connor Estate, a man applied to qualify as the spouse of his long-term mistress. Even though over the course of their 20-year relationship the parties never lived together (for about 18 years the man was married) and they largely kept their money separate, the court found he was the deceased’s spouse and he inherited her entire estate. Last week the court left open for trial the “novel claim” of whether a secret, largely virtual relationship between a BC woman and a Buddhist holy figure residing in India qualifies as “marriage-like” (see Han v Dorje decision here and CBC article here).

The court recognizes the complexity of modern relationships and takes a contextual approach when assessing them. In addition to living arrangements, the court will consider such things as:

• Financial arrangements: ownership of property (who owns what and how is it registered)? How household bills are dealt with? Is a party is named as a dependent in a benefit plans or beneficiary on life insurance policies or RRSPs?
• Relationship with each of their families: do they know extended family? Spend special occasions together? Have children together or any role with each other’s children?
• Participation in social and community activities together
• Presentation and introduction of each other: refer to as wife/husband, roommate, friend? What do tax returns say? Listed as next of kin on any documents? Photographs of each other on display? 
• Daily routine: are chores divided up? How are such things as preparation of meals, shopping, household maintenance, etc., dealt with?
• Intimacy of relationship (physical and emotional): Sexual? Fidelity towards each other? Communication on personal level? Assist each other if ill? Buy gifts for each other? Share childhood memories? Make plans together for future?

No one factor is determinative of a marriage-like relationship beyond the requirement from WESA that it be ongoing for at least two years. Reflecting on our times in Han v Dorje, Master Elwood writes: 

…the traditional factors are not a mandatory check-list that confines the ‘elastic’ concept of a marriage-like relationship. And if the COVID pandemic has taught us nothing else, it is that real relationships can form, blossom and end in virtual worlds.

What difference does being a “spouse” make?

For British Columbians, if you die without a will and have no children the entirety of your estate goes to your spouse (or spouses if more than one person qualifies at the time of death). If you also have children, your spouse receives household furnishings, a preferential share of either $150,000 or $300,000 of your estate (depending on whether the children are common to you and your spouse), and the remainder of your estate is divided equally between your spouse (50%) and your children (50% shared). If you have no spouse or children, your estate goes to your parents.

If you die with a will that your spouse does not believe makes adequate provision for him or her, Section 60 of WESA enables your spouse to apply to the court to seek a variation of how your estate is distributed. If successful, a variation claim allows the court to substitute the terms of your will for what it believes are just and equitable. The ability to seek a variation is restricted to spouses and biological/adopted children only.

That said, the classification of “spouse” is extremely important when it comes to an estate. It brings with it additional rights and can be the difference between inheriting everything or nothing.

CONTACT RDM LAWYERS

Questions about who qualifies as a spouse, if a will has adequately provided for you or whether a will is valid? We can help. Contact our office at 604.853.0774 to set up a consult with a member of the Estate Litigation team today.