‘Til Death Do You Part: Who Counts as Your “Spouse” When You Die?

When a person dies without a will, the BC Wills, Estates and Succession Act[1] (“WESA”) sets out the default scheme of who stands to inherit the deceased person’s estate, in what order of priority and to what extent.

As one might expect, first in the line of priority is the deceased’s spouse, if they had one. Determining whether or not a deceased had a spouse may be straightforward where the deceased was legally married, but what about common-law spousal relationships?

“Spouse” is defined in WESA to include persons who “lived with each other in a marriage-like relationship for at least two years”. On its face, the statute does not require that the two years immediately precede the deceased’s death. The idea that the two years sufficient to establish a marriage-like relationship can definitively occur prior to and separate from the deceased’s death was affirmed by the BC Court of Appeal in Robledano v. Queano, 2019 BCCA 150.

In this case, the deceased (“Ms. Jacinto”) died in 2014 without a will and without any children. Ms. Robledano sought entitlement to the entirety of Ms. Jacinto’s estate on the grounds that she was Ms. Jacinto’s spouse. The couple had lived together in a marriage-like relationship between 1985 and 2000, and then again between 2005 and 2010. By the time of the deceased’s death, they were no longer cohabitating. Nevertheless, the BC Supreme Court held that the couple were spouses in accordance with WESA and that the relationship had not been terminated, despite the fact that Ms. Jacinto and Ms. Robledano were living apart at the time of Ms. Jacinto’s death.

The Court of Appeal upheld this decision, stating at paragraph 40:

… in order for a person who was not married to the deceased to be their spouse, the two must have lived together in a marriage-like relationship for two years, but not necessarily for the two years immediately preceding the deceased’s death.

While there was some evidence that the couple’s marriage-like relationship ended in 2010, there was also evidence that the relationship had survived. On the sum of the evidence, Ms. Robledano was declared to be the surviving spouse of Ms. Jacinto and was entitled to the entirety of the estate of Ms. Jacinto.

[1] SBC 2009, c. 13

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