Separation, Wills, and your Children’s Inheritance: Navigating BC’s Estate Rules

When spouses separate, it is natural for their immediate focus to fall on parenting arrangements, support, and the division of family property. However, many separating couples do not realize that failing to address key estate planning issues can have significant and unintended legal consequences. Under British Columbia law, the Wills, Estates and Succession Act (“WESA”) sets out what happens to a person’s property if they die without a valid Will. For separated spouses who have not yet finalized their family law matters, these rules may operate in ways they did not expect.

A common misconception is that a separated spouse will automatically inherit from the other if one of them dies before reaching a final settlement. In fact, WESA provides the opposite result. When a person dies without a Will, their assets do not automatically pass to a spouse from whom they are separated. Instead, the law directs that the deceased’s estate passes to their biological or legally adopted children. Even if the separating spouses were still working through the division of property at the time of death, the surviving spouse may have no automatic right to inherit under intestacy laws.

This can create particularly difficult situations where the deceased leaves behind minor children. Under WESA, if children are under the age of 19, the portion of the estate that would otherwise be paid directly to the children cannot be given to the surviving parent to manage. Instead, that share must be transferred to the British Columbia Public Guardian and Trustee, who becomes responsible for managing the children’s inheritance on their behalf. The funds are held and administered according to strict statutory requirements, and the children will not receive direct control of their inheritance until they reach the age of 19.

Many parents do not intend for the Public Guardian and Trustee to take control of their children’s inheritance, nor do they anticipate that their separated spouse may receive nothing from their estate. These outcomes often conflict with what individuals would have chosen if they had prepared an updated Will or finalized their family law arrangements.

For these reasons, it is critically important for separating spouses to address both their family law matters and their estate planning as early as possible after separation. Finalizing a separation agreement provides clarity around property ownership, support obligations, and parental decision-making. At the same time, updating or preparing a Will ensures that a person’s wishes will be carried out in the event of death and that their assets will pass to the beneficiaries they choose, in the manner they choose. Estate planning can also include appointing guardians for minor children, establishing trusts to manage funds for them, and choosing an executor who is capable of administering the estate.

Failure to take these steps can result in outcomes that are legally rigid, financially disadvantageous, and contrary to what either spouse truly intended. By addressing family law and estate matters promptly upon separation, individuals can protect their children, safeguard their assets, and ensure that their wishes—not default statutory rules—govern the future distribution of their estate.

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If you’re considering separation or divorce in British Columbia, we invite you to contact us to see how Greg Lilles Law can help with your family estate planning.