(1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and
(a) they were married to each other, or
(b) they had lived with each other in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for at least 2 years.
(2) Two persons cease being spouses of each other for the purposes of this Act if,
(a) in the case of a marriage,
(i) they live separate and apart for at least 2 years with one or both of them having the intention, formed before or during that time, to live separate and apart
(ii) an event occurs that causes an interest in family assets, as defined in Part 5 of the Family Relations Act, to arise, or
(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.
(3) A relevant time for the purpose of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.
The criteria for spouses who are not legally married to each other in section 2(1)(b) are similar to the criteria in British Columbia’s current Estate Administration Act (section 1), and Wills Variation Act (section 1). Currently there are some small differences in the wording of the definitions in the Wills Variation Act and the Estate Administration Act, and it will be beneficial to have an identical definitions to avoid inconsistencies (although the courts seem to be interpreting the definitions in a consistent manner in any case).
The provisions in subsection 2(2) dealing when spouses cease to be spouses for the purposes of succession law are new.
The proposal that legally married spouses cease to be considered spouses if they have lived separate and apart for 2 years, with at least one of them having the intention to live separately permanently, has at least a couple of significant implications.
Currently, under the Wills Variation Act, a married spouse has the right to apply to vary the will of his or her deceased spouse regardless of whether the couple had been separated at the deceased’s death. Only divorce terminates the right of a separated spouse to apply. Under the proposed changes, if a spouse has been separated for at least two years, he or she will not be entitled to apply.
Under the Estate Administration Act, a legally married spouse who has been separated for at least one year loses his or her right to inherit from his or her spouse under the intestacy provisions for people who die without a will. This is subject to the court’s discretion to award the separated spouse something on the spouse’s application. See section 98.
The proposed new legislation will allow a spouse who has been separated for more than one year, but less than two, to inherit if the deceased spouse did not have a will, unless there had been a triggering event under the Family Relations Act.
The proposals will reduce the risk that there will be two spouses making competing claims under either the Wills Variation Act, or the intestacy provisions of the Estate Administration Act (though perhaps not in Bountiful). Because a legally married spouse loses his or her status as a spouse after a two-year separation, and common law spouses must live together in a marriage-like relationship for at least two years before they are considered spouses, it should be rare for anyone to have two spouses for succession law purposes.