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What defines a spouse in terms of estate planning?

Married, divorced or soon-to-be-married British Columbia residents beginning to undertake their estate planning might be wondering how the province's Wills, Estates and Succession Act defines a "spouse" for the sake of estate planning. As it turns out, in keeping with similar B.C. statutes addressing spousal relationships, a person may be granted spouse status without necessarily being legally married; he or she need only live in a "marriage-like relationship" for at least two years. This stipulation applies to same-sex partnerships as well.

WESA, which received Royal Assent in October 2009 and effectively consolidated four separate statutes governing various aspects of estate administration, also defines when people can lose their spouse status. When court orders declaring the marriage null and void or calling for a judicial separation or dissolution of the couple's marriage are made, both partners lose their legal spouse status. This will also occur if the couple make a separation agreement or if the Supreme Court rules that the spouses have "no reasonable prospect of reconciliation."

In addition, if both spouses reside separately for a minimum of two years in accordance with one or both of their intentions, they legally cease to be spouses. The act further notes that unmarried persons legally recognized as spouses cease to be so when they or their partner terminates their "marriage-like relationship," but it does not elaborate on what constitutes termination.

Marital status can substantially affect how a person's assets are distributed after his or her passing. While the above information can be helpful for planning wills or other vital estate planning documents very broadly, each person's situation is unique. A wills and estates lawyer could help clients with the finer details and ensure that they understand their options and the legal implications of each.

Source: The Continuing Legal Education Society of BC, "Legislative Changes and Update Highlights: Power of Attorney Act and Wills, Estates and Succession Act ", September 29, 2014

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