Is it possible to have more than one spouse? This is a question that estate administrators and litigators frequently come across. According to the Wills, Estates and Succession Act (“WESA”) it is possible to have more than one spouse. Section 22 of the Act states:
Two or more spouses
22 (1) If 2 or more persons are entitled to a spousal share of an intestate estate, they share the spousal share in the portions to which they agree, or if they cannot agree, as determined by the court.
(2) If 2 or more persons are entitled to apply or have priority as a spouse under this Act in respect of an intestate estate, they may agree on who is to apply or who is to have priority, but if they do not, the court may make the decision.
While it might be unusual, it is possible for a person who dies without a Will to leave behind two or even more persons who might qualify as a “spouse” under WESA for the purposes of intestate estate distribution. The two cases below deal with this situation.
Boughton v Widner Estate
In Boughton v Widner Estate, 2021 BCSC 325, the Deceased was married to Sabrina Widner, while also having a long-term relationship with Sara Boughton. The Deceased had children with both women and spent a significant amount of time with each family. Sara Boughton knew the Deceased was married but believed the Deceased would eventually get divorced and marry Ms. Boughton. However, Ms. Widner had no knowledge of the other relationship and was not separated from the Deceased at the time of his passing.
The court was asked to determine whether Ms. Boughton was a legal spouse of the Deceased under the Wills, Estates and Succession Act. Ms. Widner attempted to argue that since polygamy is in direct contravention of the Criminal Code, the Deceased could not have two spouses. Although there is a strong argument, the court determined that the Criminal Code does not extend to conjugal relationships, common law cohabitation, or adultery. As a result, the judge determined Ms. Boughton was in a marriage-like relationship with the Deceased and therefore he had two spouses under the Wills, Estates and Succession Act.
The court determined that the legislation appears to have intended to continue to provide for individuals in a marriage-like relationship with an individual who was still married to someone else at the time of death. Given this determination, both women were spouses. Both women also had two children by the Deceased and as a result the court concluded both women were entitled to half of the Deceased’s estate.
Connor Estate
In the Connor Estate, a 2017 British Columbia Supreme Court case, Mr. Chambers and the Deceased had an intimate relationship lasting over 21 years. When their relationship began, Mr. Chambers was already legally married. Mr. Chambers never told his wife about his relationship with the Deceased and made various excuses for his frequent absences. The evidence showed that Mr. Chambers and the Deceased went on vacation together, had dinners and lunches together, referred to each other as ‘husband’ and ‘wife,’ and cared deeply for one another. Mr. Chambers separated from his wife in 2012, and the Deceased passed away in 2014. It was argued that it is not legally possible for Mr. Chambers and the Deceased to have a marriage-like relationship until after he separated from his wife. The judge disagreed and stated:
“I respectfully disagree with this proposition. The issue is reviewed in detail in Austin, at para. 6 above. It is correct to say that a person who is not legally divorced does not have the legal capacity to enter a common-law marriage. However, such capacity is not a pre-requisite for the statutorily contemplated “marriage-like relationship” referred to in s. 2(1)(b) of WESA.”
Conclusion
The Wills, Estates and Succession Act acknowledges that marriage-like relationships come in many forms. If you find yourself in a similar situation as discussed above, or if you have any questions regarding estate law, please contact any member of our Estate Planning and Litigation Group for further guidance.
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Scott Somers Lawyer | Estate Planning & Litigation Langley |
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Regina Vdovina Lawyer | Estate Planning & Litigation Langley |
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.