Same-sex marriage and divorce: What happens to an inheritance?

In British Columbia, heterosexual couples and same-sex couples have the same rights. However, when it comes to same-sex marriage and divorce, it can get complicated. One of the areas that often raise questions is the rights of a same-sex spouse to the assets of a partner upon death. Sorting out the issues related to property division when the couple decides to end a common-law relationship or when one party dies may be best accomplished with the assistance of a legal professional.

The rights of a surviving spouse or common-law partner will depend on where the couple resides at the time of a partner’s death, and the length of the marriage or common-law relationship. Provincial laws will also determine whether a same-sex or common-law partner can claim a share of the deceased partner’s property. In British Columbia, partners have that right, and if one partner receives a monetary gift or inheritance, the other party will be entitled to a share of it upon the recipient’s death.

However, if the receiving spouse wants to prevent the other party from sharing that gift or inheritance, he or she must record that wish as a clause in a will or cohabitation agreement. The clause must stipulate that the beneficiary spouse must not share in the inheritance, nor in any growth in the funds. However, if the inheritance is not kept separately but commingled with joint assets or shared expenses, it will become a joint asset to be shared.

Even though same-sex marriage and divorce are regarded as any other marriage or divorce in British Columbia, the courts have only recent same-sex cases to refer to when applying the law to new cases. For that reason, any same-sex spouse who wants to protect his or her assets in the event of a divorce or death may benefit from discussing those wishes with an experienced family law and divorce lawyer. A seasoned lawyer can provide support and guidance with drafting a marital agreement along with other matters.

Source:, “Same-sex divorce and division of assets“, Bruce Sellery, Accessed on Jan. 31, 2017

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