Can My Spouse Leave Me Out of Their Will?

This article contains general information and is not legal advice. For qualified legal advice, please contact us to get in touch with a British Columbia Estate Lawyer. 

When it comes to estate planning, one of the most frequently asked questions we receive is whether a spouse can be completely left out of a will. In British Columbia, the legal framework surrounding wills provides certain protections for spouses. However, testamentary freedom is also a factor which can make changing the estate distribution difficult. 

If you’re a surviving spouse who has been left out of your spouse’s will, there may still be legal pathways for you to get the financial support you are entitled to. We’ll explore the will-makers’ testamentary freedom when making distribution decisions and whether a spouse can be excluded.  

If you are planning to contest your spouse’s will, it’s important that you seek legal advice from a qualified estate litigation lawyer in British Columbia. 

The Will-Makers Testamentary Freedom

In British Columbia, individuals (also known as will-makers) generally have the right to determine how their estate is divided upon their passing. This principle of testamentary freedom allows for personal choice in distributing assets. However, the Wills, Estates and Succession Act (WESA) places safeguards in place to prevent spouses from being disinherited without valid reasons.

Can My Spouse Leave Me Out of Their Will in British Columbia?

Your spouse cannot leave you out of their will unless they have a justifiable reason to do so. 

Spouses are owed a legal and moral obligation to be provided for, and this obligation must be followed even if it goes against the deceased spouse’s wishes. 

When examining cases of potential spousal disinheritance, the court considers two things: 

• The Legal Obligation, which is determined by the nature of the relationship between the will-maker and their spouse at the time of death.
• The Moral Obligation, which is often harder to prove and define. The court considers factors such as the surviving spouse’s financial dependence on the deceased, whether they acted as a caretaker leading up to the will-maker’s death, and the duration of their marriage.

One reason a spouse could be justifiably left out of the will is if the couple were in the process of separating or intended to separate leading up to their death. It would be up to the executor to justify the absence of a spouse in the will.

Under Section 60 of the Wills, Estates and Succession Act (WESA), spouses have the right to petition the court to modify the terms of a will if they believe they have been wrongfully disinherited or inadequately provided for.

I need legal advice for making a wills variation claim!