Real Estate Title and Estate Planning
Can Your Spouse Leave Their Share of Your Home to Someone Else?
When a spouse passes away, many people assume that having both names on title means the surviving partner automatically inherits the entire home.
However, under British Columbia law, this is not always true. How title is held determines whether a property passes directly to a surviving partner or becomes part of an estate distributed through a will.
A recent decision from the Supreme Court of British Columbia, Vencer v. Handinero (2026 BCSC 1421), serves as an important reminder of how property ownership rules intersect with estate planning and will variation claims.
The Real Estate Divide: Joint Tenancy vs. Tenancy in Common
Under British Columbia’s land title system, there are two distinct ways people can hold real estate together, and they can lead to different outcomes upon death:
Joint Tenancy (Right of Survivorship):
● Both owners hold an equal, undivided interest in the property.
● When one owner dies, their interest automatically transfers to the surviving owner outside of the estate process. It does not pass through a will.
Tenancy in Common (No Right of Survivorship):
● Each owner holds a distinct, separate share (such as 50/50).
● When an owner dies, their specific share becomes an asset of their estate and is distributed according to their will or upon intestacy if they do not have a will.
The Dispute: Vencer v. Handinero
In Vencer v. Handinero, a couple had been married for over 40 years and lived together in a Vancouver condominium. However, title to the property was held as tenants in common, with each spouse owning a 50% share.
When the wife passed away, her will did not leave her share of the condominium to her husband. Instead, she bequeathed her 50% interest to her brothers.
The surviving husband, a retired realtor who understood land title ownership, applied to vary the will under Section 60 of BC’s Wills, Estates and Succession Act (WESA), arguing that his wife had a moral and legal duty to leave her share of their long-time home to him.
Balancing Spousal Duties Against Testamentary Freedom
When evaluating will variation claims under B.C. estate law, courts balance two competing principles:
● The Primary Duty: A will-maker has an obligation to make adequate, just and equitable financial provision for their surviving spouse and children.
● The Secondary Right: An individual has the legal freedom to decide who inherits their property. While this freedom is subordinate to the duty to provide for family, courts will not rewrite a will simply to improve fairness if adequate provision has already been satisfied.
In this case, the court upheld the wife's decision to leave her half of the property to her family. Because the spouses had kept separate finances throughout their marriage and intentionally chose to hold title as tenants in common, leaving her separate share to her siblings fell within the range of acceptable, fair outcomes.
Key Takeaways for Property Owners and Spouses
● Check Your Title: Never assume you will automatically inherit a shared home. Confirm whether your ownership is set up as a Joint Tenancy or Tenancy in Common.
● Align Real Estate with Estate Planning: How your title is structured directly affects whether your property avoids probate or passes under your will.
● Understand Wills Variation Risks: While surviving spouses have statutory protections in British Columbia, courts will respect a deceased partner's testamentary choices if the overall arrangement is just and equitable.
Need Guidance on Real Estate Title or Estate Planning?
Whether you are buying property, updating your will, or navigating an estate dispute, the structure of your property ownership matters. Contact our team today to ensure your estate plan and property titles protect your intentions at info@coastmountainlaw.com or 604.892.5254.
If you’re interested in understanding who can contest a will, check out our other blog: Can I Challenge My Father-in-Law’s Will.
This blog post uses the recent decision in Vencer v. Handinero (2026 BCSC 1421). To read the full decision see, Vencer v Handinero, 2026 BCSC 1421 (CanLII), <https://canlii.ca/t/kmbp9>, retrieved on 2026-09-14.