Can you disinherit your spouse in Quebec? What is the impact of the family patrimony?
In Quebec, a person generally has considerable freedom to decide who will inherit their estate. This freedom can extend to excluding a spouse from a will. However, disinheriting a spouse does not necessarily mean that the surviving spouse will receive nothing after death.
The reason is that inheritance rights are only one part of the financial consequences of death. If the deceased was married or in a civil union, the rules governing the family patrimony and the spouses’ matrimonial or civil union regime must generally be dealt with before the estate can be distributed under the will.
As a result, a spouse who has been completely excluded from a will may nevertheless have substantial financial rights against the estate.
Can you disinherit a spouse in Quebec?
In principle, yes. Quebec succession law is based on a broad concept of testamentary freedom. A person making a will can generally choose their heirs, determine the proportion each heir will receive and exclude someone who might otherwise have inherited.
This can include a husband or wife.
For example, a married person may decide to leave the entire estate to children from a previous relationship and leave nothing to the surviving spouse under the will. A person may also favour another family member, a friend or another beneficiary.
But an important distinction must be made: being excluded as an heir is not necessarily the same thing as having no financial rights following the spouse’s death.
For married and civil-union spouses, several rights arise independently of the will. One of the most important is the family patrimony.
The family patrimony comes before the inheritance
The family patrimony is separate from the succession.
When a married or civil-union spouse dies, the financial consequences of the marriage or civil union must generally be settled before determining what property actually remains available for distribution to the heirs.
This distinction is fundamental.
A will determines what happens to the deceased’s estate. It does not ordinarily allow the deceased to eliminate the surviving spouse’s rights arising from the family patrimony.
In practical terms, the liquidation usually follows this general sequence:
- the family patrimony is determined and settled;
- the matrimonial or civil union regime is liquidated;
- other claims against the succession are considered, where applicable; and
- the remaining estate is distributed according to the will.
Consequently, a clause stating that a spouse receives nothing from the estate does not, by itself, eliminate rights that exist outside the will.
What property is included in the family patrimony?
The family patrimony does not include everything owned by either spouse.
Generally, it concerns certain property associated with family life, including qualifying family residences, furniture used by the family, motor vehicles used for family transportation and certain retirement and pension rights accumulated during the marriage or civil union.
The calculation is based primarily on value rather than on simply dividing every asset physically in half.
This distinction can be especially important when the principal asset is a house.
For example, the fact that the family residence is registered exclusively in the deceased spouse’s name does not necessarily mean that its entire value can simply be transferred to another heir through a will without first considering the family patrimony.
Ownership and the right to share in the value of the family patrimony are different legal questions.
Does the surviving spouse automatically receive half of every asset?
No.
The expression “half of the family patrimony” can be misleading when taken out of context. The calculation involves the net value of property that legally forms part of the family patrimony and may require adjustments for debts and certain contributions or values that the applicable rules permit to be deducted.
Some property is outside the family patrimony altogether.
Bank accounts, many investments, business interests and various other assets do not become family patrimony merely because the spouses are married. Their treatment may instead depend on ownership, the matrimonial regime, contractual arrangements and the succession.
The final calculation can therefore be substantially more complicated than simply adding up everything owned by the spouses and dividing it by two.
Does separation as to property allow you to disinherit your spouse completely?
Not necessarily.
A frequent source of confusion is the matrimonial regime of separation as to property.
Being married under separation as to property does not normally eliminate the family patrimony. These are two different legal mechanisms.
Separation as to property determines how property outside the family patrimony is treated between the spouses. The family patrimony operates separately and can apply regardless of which spouse holds title to the property.
A person who assumes that a marriage contract providing for separation as to property allows the entire estate to pass freely to children or other beneficiaries may therefore create an estate plan that produces very different results from those intended.
Can a will override the family patrimony?
Generally, no.
A will can control the distribution of the property that forms part of the estate, but it cannot ordinarily be used to contract out of the mandatory consequences of the family patrimony.
This means that wording such as “I leave nothing to my spouse” may be effective in excluding the spouse as a testamentary heir while still leaving the spouse with rights arising from the marriage or civil union.
The distinction between a beneficiary under a will and a creditor or rights-holder in the liquidation of the spouses’ patrimonial interests is therefore crucial.
What happens to the family home?
The family residence is often the source of the greatest practical difficulty.
Suppose a person owns a home in their name alone and leaves it to their children in the will. If the property qualifies as a family residence, its value may nevertheless have to be taken into account when the family patrimony is settled.
This does not necessarily mean that the surviving spouse automatically becomes owner of half of the house. The family patrimony generally creates rights based on value.
The estate may therefore face a financial obligation toward the surviving spouse before the testamentary gift of the property can be fully implemented.
This can create liquidity problems where most of the deceased’s wealth is tied up in real estate. The heirs may receive the house under the will but find that the succession must first satisfy an important claim in favour of the surviving spouse.
What about the matrimonial regime?
The analysis does not end with the family patrimony.
Once the family patrimony has been dealt with, the matrimonial regime may also have to be liquidated. Depending on whether the spouses were governed by partnership of acquests, separation as to property, an older community regime or another valid arrangement, additional amounts or property may have to be accounted for before the succession is distributed.
This is why determining whether someone has successfully “disinherited” a spouse cannot be done by reading the will alone.
The marriage contract, date and place of marriage, matrimonial regime, ownership of the assets, history of the spouses’ property and debts, and circumstances existing at death may all affect the result.
Can a surviving spouse have rights even if the spouses were separated?
Yes, potentially.
A factual separation does not necessarily end a marriage or civil union.
Two spouses may have lived separately for months or years and still remain legally married. If the marriage has not legally ended before death, rights associated with the marriage may continue to have important consequences.
This can produce unexpected results, particularly where the deceased had begun a new relationship but had never completed a divorce.
A will naming a new partner does not, by itself, erase the legal consequences of an existing marriage.
What about common-law spouses?
This is where terminology becomes particularly important.
A common-law or de facto spouse is not in the same legal position as a married or civil-union spouse merely because the couple lived together for many years.
The traditional family patrimony applicable to marriage and civil union does not automatically apply to ordinary de facto spouses.
However, Quebec law now also recognizes a distinct parental union regime for certain unmarried couples who become parents together. This regime can create patrimonial consequences of its own and should not be confused with the family patrimony applicable to married and civil-union spouses.
Other legal mechanisms, contracts, ownership arrangements and claims may also affect the rights of unmarried partners.
Accordingly, before asking whether a “spouse” can be disinherited, it is essential to determine the couple’s actual legal status.
Are there other possible claims against the estate?
Yes.
The family patrimony is not necessarily the only issue. Depending on the circumstances, the surviving spouse may have other rights or claims that must be considered before the heirs receive the estate.
The nature of those rights depends heavily on the spouses’ legal status, matrimonial regime, financial circumstances and arrangements made during their lifetime.
For that reason, a will should not be analyzed in isolation when the objective is to exclude a spouse from an estate.
Disinheriting a spouse when there are children from a previous relationship
The issue frequently arises in blended families.
A person may want their children from a previous relationship to inherit a house, investments or other assets while ensuring that a current spouse does not inherit those assets.
A will can be an important part of such planning, but the desired result cannot be assessed solely by deciding who is named as an heir.
The first question is what financial rights will arise in favour of the surviving spouse at death. Only after those rights are identified is it possible to determine what property is likely to remain in the estate for the children or other beneficiaries.
This distinction is particularly important when the family home represents a large percentage of the deceased’s net worth.
International marriages and property outside Quebec
The analysis can become considerably more complex when the spouses married outside Quebec, lived in different countries or provinces, changed their residence during the marriage, or own property abroad.
It should not automatically be assumed that every aspect of the spouses’ financial relationship will be governed by Quebec rules merely because the deceased lived in Quebec at the time of death.
Questions of private international law may affect the matrimonial regime, succession, ownership and treatment of property situated outside Quebec.
Foreign wills, foreign marriage contracts and foreign divorce or separation proceedings can create additional issues.
International estates therefore require an analysis of both succession rules and the rules governing the spouses’ property relationship.
Can you completely prevent a spouse from receiving anything after death?
Sometimes a will can exclude a spouse entirely from the inheritance itself. But whether the surviving spouse ultimately receives nothing is a different question.
The answer depends on several factors, including:
- whether the couple was married, in a civil union, in a parental union or living in another form of relationship;
- whether the family patrimony applies;
- which assets form part of the family patrimony;
- the spouses’ matrimonial or civil union regime;
- how the assets are owned;
- whether there are other claims against the succession;
- whether the spouses were separated or divorced;
- whether a marriage contract or other agreement exists; and
- whether another jurisdiction is involved.
The wording of the will is therefore only one part of the analysis.
In Quebec, it is generally possible to disinherit a spouse in a will in the sense of not naming that spouse as an heir.
However, a married or civil-union spouse may still have significant financial rights that arise independently of the will. The family patrimony is particularly important because it must generally be dealt with before the remaining estate can be distributed to the heirs.
For estate planning purposes, the real question is therefore not simply, “Can I disinherit my spouse?”
The more useful question is:
“If my spouse is excluded from my will, what rights will my spouse still have against my property or succession when I die?”
Answering that question requires looking beyond the will and considering the family patrimony, matrimonial regime, ownership of property, family situation and, where relevant, private international law.
A Quebec lawyer dealing with wills and estates will generally need this broader picture before the practical effect of disinheriting a spouse can be properly assessed.
This text is provided for legal information purposes only. If you have a specific question regarding your personal situation, please contact a lawyer.
Allen Madelin Avocats offer consultations both in person and via videoconference. The first consultation is offered for $125.For more information, please contact us by telephone: 1 514 904 4017 or by e-mail: [email protected].
