Can Unpaid Wages of a Deceased Person be Paid to a Surviving Spouse Directly?


By Simon Wu and Zachary Murphy-Rogers

The administration of an estate is a complex process, and navigating its nuances can be challenging. This blog post aims to provide some guidance with respect to one small aspect of estate administration, namely, the wages of a deceased person. After the loss of a loved one, particularly where the loss was sudden and unexpected, there can be significant financial stressors on top of grief and sadness. Luckily, BC law attempts to alleviate at least some of that financial stress, by exempting unpaid wages from the standard estate administration process.

Division 13 of Part 6 of the Wills, Estates and Succession Act (“the Act”) directly deals with the issue of a deceased worker’s wages. To qualify for the provisions in Division 13, the deceased person must meet the criteria of “worker” as defined under section 175 of the Act, namely be:

“a person who has entered into or works under a contract of service or apprenticeship, whether the contract is written or oral, express or implied, in an industry within the scope of the compensation provisions of the Workers Compensation Act, as defined in that Act, whether by way of manual labour or otherwise.”

Once this criteria is met, any wages earned by the worker during the three months before the worker’s death which remain owing to the worker at the time of the worker’s death, are to be paid directly to the deceased’s surviving spouse, if any. It is important to know that “spouse” here includes those unmarried but living in a common-law or marriage-like relationship with the deceased person prior to death.

Most critically, these wages are not subject to any laws relating to intestate estates (estates without wills) or to estates with wills. This effectively means these wages would pass to the surviving spouse outside of the estate, allowing the spouse to bypass many estate administration formalities and receive the money both more easily and more quickly. For example, the money will not need to be deposited into the deceased’s bank account, which may be frozen for some time while the estate grant is sought from the Court. Additionally, probate fees will not need to be paid on the unpaid wages (even though the wages were accruing and owed to the deceased worker before death). Finally, the wages will not be subject to the deceased’s worker’s creditors.

In order to be entitled to these wages, a surviving spouse must produce an affidavit (a sworn statement) stating that he or she is in fact the surviving spouse of the deceased worker and is entitled to these unpaid wages. An employer who, in good faith, relies on such an affidavit and pays the surviving spouse will not be liable to the deceased worker or their estate for this payment of wages.

If two or more people claim to be the surviving spouse of the deceased worker, an application to Court will be needed; the Court has wide discretion to order how and to whom the wages should be paid out.

In sum, Division 13 of Part 6 of the Wills, Estates and Succession Act allows a surviving spouse to receive the unpaid amount of a deceased worker’s wages much more easily.

Should you have any questions regarding the wages of a deceased worker or any other estate-related questions, please do not hesitate to contact us. Clark Wilson’s experienced and dedicated Estates and Trusts team can help you navigate any issues you may have.