When a Partner Dies Without a Will: Intestacy Conflicts for Common-Law Couples in BC

When someone dies without a will in British Columbia, legally known as dying intestate, the estate is distributed according to the rules set out in the Wills, Estates and Succession Act (“WESA”). Many people assume that a long-term common-law partner will automatically inherit, but under BC law, intestacy rules require certain requirements to be met.

Who Qualifies as a Common-Law Partner Under Intestacy Rules?

Under WESA, a “spouse” includes married partners and common-law partners who have lived in a marriage-like relationship for at least two years immediately before death. If this two-year requirement is not met, a surviving partner may have no legal claim under intestacy, even after decades together.

Key factors courts examine include:

  • Duration of cohabitation, particularly the two years immediately prior to death;
  • Shared financial arrangements, such as joint accounts, mortgage payments, or household expenses;
  • Evidence that the relationship was publicly recognized and considered marriage-like; and
  • Mutual care and support, including contributions to daily life and caregiving.

Cases like Jones v. Davidson, 2022 BCCA 31 demonstrate how courts scrutinize these factors. In Jones, Richter Trial Lawyers successfully argued that the surviving partner could not prove the relationship met the two-year requirement and was therefore not entitled to a share of the estate.

Intestacy Distribution for Common-Law Partners

Even when a common-law partner qualifies, their share of the estate depends on whether the deceased had children or other dependents:

  • With children: The surviving partner is entitled to a preferential share. The remainder of the estate is distributed to the children.
  • Without children: The surviving partner may inherit a larger portion or the entirety, depending on other surviving family members.

Courts will carefully examine financial independence, prior support, and contributions to determine whether the surviving partner’s claim is reasonable.

Why Intestacy Disputes Occur

Disputes between common-law partners and other potential heirs are common and can include competing claims between adult children and the surviving partner, arguments over joint property or assets held solely in one name, allegations of moral obligation or unfairness, and challenges based on whether the relationship met WESA’s two-year requirement.

Litigation often requires presenting evidence of the relationship, contributions, and financial dependence. Judges assess credibility, shared life patterns, and the totality of the relationship when determining entitlement.

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