Protect the ones you love within the Civil Code of Quebec

Joyce Blond Frank B.A., B.C.L., LL.M.

February 2011

The month of February brings Valentine’s Day, the day we show we care with gifts of cards, flowers and chocolates.

Another way to care is by ensuring that our loved ones are protected now and in the future. I regularly emphasize the necessity of making a will. Where there is no will and a person passes away, the Civil Code of Quebec sets out who are the legal heirs. These are the spouse, children, parents, siblings and more distant relatives.

The Civil Code also stipulates what portion of the estate each of these groups will inherit. Remember that the laws of Quebec attempt to protect matrimonial assets with the creation of a family patrimony upon marriage, and that the Civil Code does not recognize the common-law spouse.

The family patrimony is created by law upon marriage and consists of family residences and their contents, registered funds (RRSPs, RRIFs), pensions, and family vehicles acquired during the marriage no matter whose name those assets are in. Upon the death of one of the spouses, the family patrimony is dissolved and the laws pertaining to its division take effect.

With this background in mind, let me describe a few of the problems that can arise when there is no will.

The married relationship. If you believe your spouse would automatically inherit everything you leave behind if you do not have a will, you are wrong. The surviving spouse would benefit from the division of the family patrimony that would take place. One equal share would become the property of the surviving spouse and the other share would be added to the other assets forming the estate of the deceased.

The surviving spouse would not inherit the entire estate of the deceased but would have to share it with the children at a ratio of two-thirds for the children and one third for the spouse. If there are no children, the spouse would have to share with the parents of the deceased or, if they are no longer living, with the deceased’s siblings in a ratio of two-thirds for the spouse, one-third for the parents or siblings.

Therefore, the surviving spouse would acquire her share of the assets of the family patrimony as well as a portion of the remaining assets forming part of the estate of the deceased. It is only when there are no children, parents or siblings that the entire share of the estate will devolve by law to the spouse.

The common-law relationship. If you have been living common law and die without leaving a will, no family patrimony has been created from which your spouse can benefit and he or she will not inherit at all. The assets in your estate will go to your legal heirs, namely, to your children, or if none, to your parents, siblings or more distant relatives.

With the above scenarios, where there is no will, a surviving spouse can find himself co-owning the family home with his children or distant relatives. He may not be able to afford to continue supporting the house, as he has not inherited the entire estate. His co-owners may want to sell the house to acquire their share of the sale price. If it was a common-law relationship and the house is not registered in the names of both spouses, the surviving spouse may not own any share in the home at all. Time is not relevant and this unfortunate situation will exist no matter how long the parties have lived together or have owned the house.

Unless there is a provision in a will, a person’s RRIF or RRSP will not automatically transfer to a spouse. It will collapse and about half the value will go to the government in tax. Only what is left will fall into the estate of the deceased and only a percentage of that will be inherited by the spouse. But, if there has been no marriage and there is no will, the common-law spouse will not inherit any part of it.

The laws pertaining to Quebec and Canada pension plans as well as most private plans recognize common-law relationships. However, the Civil Code does not; nor does it provide for one spouse to inherit the entirety of the other spouse’s estate after death. So protect whatever relationship you have. Your will may prove to be the best Valentine’s Day gift of all.