What happens if someone passes and their marriage or cohabitation agreement and will do not match?

When a surviving spouse is disappointed by the will of a deceased, there are recourses available to them. The first question is whether the spouses had separated at any point in their relationship. If the spouses have not separated, a wills variation claim (an application to change a will) is available to the disappointed spouse. If the spouses have separated, the ex-spouse can start an ‘after-death’ Family Law Act (FLA) claim. 

If spouses have not separated…

The Wills, Estates, and Succession Act (WESA) requires a will to provide adequate support to the will-maker’s spouse and children. As long as spouses have not separated, a will-maker’s spouse may apply to the Court to vary the deceased’s will, if they feel the will does not provide them adequate maintenance and support. This means the Courts have the ability to override a will and provide more to the surviving spouse and or children. This is regardless of whether there is a prior marriage or cohabitation agreement between the spouses that may provide for a different distribution of assets. The British Columbia Supreme Court in Brown v Terins, 2016, found that even an agreement that is fair solemn and well-considered is unlikely to be a complete answer to a wills variation claim, thus allowing the will to be changed.

However, the Courts can take into consideration a marriage or cohabitation agreement and the circumstances under which the agreement was made, as a factor to a wills variation claim. For example, in Howard v Howard Estate, [1997] 91 BCAC 136, the Court dismissed a spouse’s variation claim, as the parties were married for a short time, married at an advanced age, and their marriage agreement outlined their intention to leave their entire estate to their respective children and make no claims against each other. As well, in Kuzyk v Czajkoski, 2016 BCSC 1109, the court endorsed the marriage agreement as the parties married late in life and agreed neither would make provisions for the other in their wills. They both subsequently had their wills prepared to reflect this agreement. For both cases, the spouses’ marriage agreements contemplated their death and little time had passed between completing their marriage agreement and death.

Spouses may wish to contract out of their entitlement to bring a wills variation claim. However, an agreement cannot prevent a surviving spouse from making a claim to vary a will. Terms in a will and remedies under WESA typically trump any agreement which the parties may have entered into which restricts such rights.

If they have separated…

Separation triggers an entitlement to family property, causes a gift to an ex-spouse in a will to be void, and starts the clock for the limitation period to bring a family law claim.

Upon separation, any gifts, beneficiary designations, or representative appointments provided in the will of an ex-spouse become void. This means ex-spouses do not inherit anything from the other’s will, unless there is a different intention specified in the will. An exception to this is if a will is signed after the date of divorce or separation.

Since an ex-spouse becomes un-inherited upon separation, unless explicitly stated otherwise, a separated spouse cannot bring a wills variation claim under WESA.

However, a family law property claim can continue against the deceased ex-spouse’s estate. The Court has held that claims to property, given from a separation agreement, do not end upon death. As well, the administrator of an estate may begin a claim for the division of family property and family debt against the surviving spouse, assuming the time limits under s. 198 of the FLA have not expired.

About London Battye

Articled Student – Kelowna

I was raised in the Okanagan, where I completed my Bachelor of Science degree at the University of British Columbia Okanagan in 2020 with a major in psychology and a minor in computer science. I then went on to complete my law degree at Thompson Rivers University in 2023.