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Birth of a child, marriage, divorce : many events regarding your family situation can have an impact on the repartition of your property when you will pass away, regardless of whether you have a will or not.
Death without a will (Legal devolution of successions)
In general, if you die without a will, your property will devolve according to the provisions of the legal succession contained in the Civil Code of Québec. The people who will inherit your property will essentially depend on the composition of your family.
It should be noted that the Civil Code does not provide that common-law spouses can inherit from each other and that only married or civil union spouses are referred by the term “spouse” in this particular matter. Indeed, despite the fact that some social laws consider the amount of time “de facto” spouses have shared a community of life to create certain juridical effects between them, it is not the case when it comes to the legal devolution of successions.
For illustration, the following scenarios can be used as examples of the distribution of property as provided by the law in a legal succession.
- If you have a spouse (with whom you are married or in a civil union) and you have children:
- Your spouse will receive 1/3 of your property
- Your children will share 2/3 of your property
- Even if you still have your parents and/or have siblings, they will not inherit from you;
- If you don’t have a spouse (with whom you are married or in a civil union), but you have children:
- Your children will share all of your property
- Even if you still have your parents and/or have siblings, they will not inherit from you;
- If you have a spouse (with whom you are married or in a civil union), but you don’t have children, nor you still have your parents and you don’t have siblings:
- Your spouse will receive all of your property
- If you have a spouse (with whom you are married or in a civil union), but you don’t have children and you still have at least one of your parents:
- Your spouse will receive 2/3 of your property
- Your parents will share 1/3 of your property
- Even if you have siblings, they will not inherit from you;
- If you have a spouse (with whom you are married or in a civil union), but you don’t have children, nor you still have your parents and you have siblings:
- Your spouse will receive 2/3 of your property
- Your siblings will share 1/3 of your property
- If you don’t have a spouse (with whom you are married or in a civil union), nor you have children, but you still have at least one of your parents and/or you have siblings:
- Your parents will share 1/2 of your property and your siblings will share the other 1/2 of your property
- However, your parents will share all of your property if you don’t have siblings.
Inversely, your siblings will share all of your property if both your parents have passed away before you.
Death without a will
With a will, you can plan yourself how your property will devolve upon your death. This therefore allows you to choose who can be your heirs and you will have a wide freedom when doing so. For example, you will be able to bequeath all of your property to your de facto spouse if you wish to do so.
Impact of a marriage or civil union on the devolution of property
As we have seen, being married or not will impact the determination of the people who will receive your property if you die without a will. However, in a more important way, being married at the time of your death will constitute an intrinsic limit to the property you will be able to bequeath to your heirs, regardless of whether you have a will or not.
Indeed, your death will cause the dissolution of your marriage and it will first be necessary to proceed to the partition of the family patrimony existing between you and your spouse, as well as your matrimonial regime, before distributing the rest of your property. It is therefore the property that you will retain as a result of these operations that you will be able to bequeath to your heirs.
Contrarily to an anterior time, a spouse does not have to choose between his matrimonial and successoral rights and can cumulate his part in the family patrimony and the matrimonial regime and also obtain the part in the succession attributed to him by the law or a will.
It should be noted that even if you and your spouse are not in a union anymore and have lived separate and apart for a long period of time, these rules still continue to apply unless you obtain a judgment of divorce.
The principles explained above also apply in case of civil union, with the required adaptations.
Another intrinsic limit: the right to support
The law also provides that certain relatives can claim a sum as financial support to your succession within six months after your death. If the criteria of the law are met, these relatives could have priority over your other heirs to receive a sum from your succession.
It should be noted that some exceptions might apply. If you wish to obtain more information and to receive advice regarding your own situation, we invite you to contact one of our lawyers.
Text written by Me Caroline Poulin LL.B.
