Determining Spousal Status in Estate Matters

The determination of spousal status has significant implications in estate matters. Many unmarried clients have preconceived notions and strong opinions about their spousal status. These beliefs may not be based in law, and a client may be surprised to learn that their spousal status is different from what they assumed, potentially resulting in unintended legal and financial consequences.

Case law makes it clear that spousal status, and particularly the definition of a marriage-like relationship, cannot be determined by the presence or absence of any particular factor. There is no checklist of characteristics that will invariably be found in all marriages. A holistic approach must be taken to determine spousal status and whether two parties are in or were in a marriage-like relationship.ⁱ

Why does it matter?

There are several reasons why spousal status is relevant in estate matters. Below are a few examples of the importance of determining spousal status. It is important to note that there may be other tests for spousal status in different contexts—i.e., family law, pension benefits, and taxation.

1. Intestacy

If a person dies intestate and leaves a spouse, the intestate estate (or the majority of the intestate estate) will be distributed to the spouse, depending on whether there are surviving descendants.ⁱⁱ Additionally, the surviving spouse has certain rights with respect to the spousal home and priority in obtaining a grant of administration of the estate.

2. Wills Variation Claims

If a person has spousal status, they have standing to challenge their deceased spouse’s will. A will-maker has both a legal and moral obligation to make provision for their spouse. A court may order that the provision it considers adequate, just and equitable in the circumstances be made from the will-maker’s estate for a spouse. If a court determines that a person was not the spouse of the deceased, this relief will not be available.ⁱⁱⁱ

3. Revocation of Gifts

Spousal status is also important in determining whether a gift provided in a will should be revoked. The Wills, Estates and Succession Act (“WESA”) provides that unless a will states otherwise, a gift to a spouse is revoked when the parties cease to be spouses and is distributed as if the spouse had died before the will-maker.^iv Determining whether a marriage-like relationship has started or ended can be difficult to assess and highly fact-specific in most cases.

4. Notice Provisions

Spousal status must also be considered when determining whether a person intending to apply for an estate grant or the resealing of a foreign grant must give notice. The BC Supreme Court Civil Rules provide that this notice must be provided to a person who would have been an intestate successor had the deceased not left a will.^v As noted above, a spouse is an intestate successor and therefore must always receive notice. Failure to provide notice to a spouse or potential spouse may delay the running of limitation periods and may expose an executor to liability if the estate is distributed without such notice.

Establishing Spousal Status

In the estate context, two persons are defined as spouses when they are married to each other or when they have lived with each other in a marriage-like relationship for at least two years.^vi The requisite two years of a marriage-like relationship need not immediately precede the death of the relevant party. However, an individual making a claim under the WESA (as an intestate beneficiary or under s. 60 of the WESA) must have been a spouse to the deceased at the time of the deceased’s death.^vii

The term marriage-like relationship is not defined in the WESA and has been interpreted broadly by the courts. For example, living together, being sexually intimate, or being financially dependent are not pre-requisites to being in a marriage-like relationship.

When determining whether two people are in a marriage-like relationship, the courts look at both the subjective intentions of the parties and the objective evidence of the parties’ lifestyle and interactions.

With respect to the subjective intentions of the parties, the courts inquire as to when the parties developed an intention to be in a committed relationship of an indeterminate, lengthy duration.^viii This evidence must be assessed against the available objective evidence concerning the parties’ relationship. However, the two-year requirement is a strict and inflexible requirement.

When assessing the objective evidence, courts frequently begin their analysis by considering the factors set out in Molodowich v Penttinen. These factors address seven categories, including shelter, sexual and personal behaviour, services, social activities, societal perception, economic support, and children.^ix

There are over 50 reported cases that cite the WESA’s definition of a spouse. The outcomes are many and varied, reflecting the wide range of relationship structures that exist between individuals.

Practical Considerations

As practitioners, it is vital to inquire into the spousal status of two individuals where it may be in issue. Relationships outside of marriage can be difficult to ascertain, as there is rarely a public declaration of intent. Clients are often confident in their own or their family member’s spousal status—either that they are spouses or that they are not. Where ambiguity exists at death, a court may draw inferences that do not align with the deceased’s intentions, based on the objective evidence available.^x

Where a client may be in a marriage-like relationship, practitioners should take special care to document subjective intention and to ensure that the estate plan is not vulnerable to challenge following death. When acting for an executor and where litigation is a realistic possibility, a comprehensive assessment should be undertaken before ruling in or ruling out spousal status.

1. Austin v. Goerz, 2007 BCCA 586 and Jones v Davidson, 2020 BCSC 1371.
2. Wills, Estates and Succession Act, SBC 2009, c 13, s 20 and 21.
3. Ibid, s 60.
4. Ibid, s 56.
5. Supreme Court Civil Rules, BC Reg 168/2009, R 25-2(2)
6. Wills, Estates and Succession Act, SBC 2009, c 13,, s 2(1).
7. Robledano v Queano, 2019 BCCA 150, and Mother 1 v Solus Trust Company Limited, 2021 BCCA 461.
8. Weber v Leclerc, 2015 BCCA 492 and Turner v Stabeck, 2020 BCSC 1553.
9. Molodowich v Penttinen, 1980 CanLII 1537.
10. Dey v Blackett, 2018 BCSC 244.