Last Will and Support Payments Continuation

A last Will is generally associated with the freedom to decide who will receive property after death. In Quebec, however, testamentary freedom is not absolute. Certain family obligations may continue to affect an estate even when the deceased has clearly stated in a Will how the property should be distributed.

One important example is the obligation of support. The death of a person who was required to provide financial support does not necessarily bring all support obligations to an immediate end. In certain circumstances, a spouse, former spouse, child or another person entitled to support may claim a financial contribution from the deceased’s estate.

This means that a last Will and existing support obligations must be considered together when planning or settling a Quebec estate.

Does child support end when a parent dies?

A parent’s death does not necessarily eliminate the financial protection available to a child.

Children are among the persons who may be entitled to claim a contribution from the estate of a deceased parent. This can be particularly important where the deceased was paying child support before death.

The right is not necessarily limited to children who were already receiving periodic child support. Depending on the circumstances, a child who had a right to support may potentially make a claim against the estate even if that right had not previously been exercised.

The child’s needs, financial resources and benefits received from the estate may all become relevant. The value and financial circumstances of the estate are also important.

Consequently, a provision in a last Will leaving little or nothing to a child does not automatically prevent every financial claim by that child.

What happens to spousal support after death?

The situation of a spouse or former spouse requires particular attention.

Where a former spouse was receiving spousal support at the time of the payer’s death, the former spouse may be able to claim a contribution from the deceased’s estate. The amount is subject to limits and is not simply an indefinite continuation of the monthly support payments that existed before death.

A surviving spouse who was married to or in a civil union with the deceased may also have rights that must be considered during the settlement of the estate.

These rights can interact with other financial consequences of death, including inheritance rights, matrimonial property rights and benefits received under the last Will.

A distinction must also be made between a married or civil-union spouse and a de facto spouse. Quebec law does not generally place de facto spouses in the same position as married spouses for inheritance and support purposes. The existence of children, a parental union, contractual arrangements and the particular family situation may nevertheless create additional issues that have to be examined separately.

Can a last Will eliminate support obligations?

A person cannot necessarily avoid the financial consequences of an obligation of support simply by leaving the person concerned out of a Will.

For example, a testator might decide to leave the entire estate to one beneficiary while excluding a child or spouse. The Will may remain relevant to the distribution of the estate, but the excluded person could still have rights that must be dealt with before the estate can ultimately be distributed.

In other words, disinheritance and the absence of a support obligation are two different questions.

The liquidator should therefore not assume that the beneficiaries named in the Will are automatically entitled to receive the entire estate without first considering potential family and support claims.

A limited contribution rather than permanent support

The continuation of support after death should not generally be understood as requiring an estate to make the deceased’s regular support payments forever.

Quebec law instead provides a mechanism through which eligible persons may claim a financial contribution from the estate. The amount available is subject to specific limits, which vary according to the relationship between the deceased and the person making the claim.

For a spouse or child, the calculation may be connected to what that person would have received if the deceased had died without a Will, compared with what the person actually receives from the estate.

For a former spouse who was receiving support at the time of death, different limits apply. Other persons entitled to support may be subject to still different limits.

The contribution can potentially be paid as a lump sum or through several payments.

The six-month period is important

Time is a significant issue in claims for support against a Quebec estate.

A person seeking a financial contribution from the estate generally has six months following the death to make the claim.

This relatively short period means that potential support rights should be examined early in the estate settlement process. Waiting until the estate has been substantially or completely distributed can create serious practical difficulties.

The liquidator should likewise identify potential claims before distributing estate property to the heirs and particular legatees.

How is the amount determined?

The existence of a possible claim does not mean that the claimant is automatically entitled to any amount requested.

The assessment can involve several factors, including the claimant’s needs and financial resources, the value and composition of the estate and the benefits that the claimant already receives as a result of the death.

The claimant’s inheritance under the Will can therefore matter. A substantial inheritance may affect the analysis, while receiving nothing or receiving only a modest amount may lead to a different result.

The deceased’s family situation is equally important. An estate involving a surviving spouse, children from a previous relationship, an ex-spouse receiving alimony and beneficiaries named in a new Will can create competing financial interests that must be reconciled during the liquidation.

Can gifts made before death affect the calculation?

Estate planning shortly before death may also require careful consideration.

In some circumstances involving claims by a spouse or child, certain gifts made before death can be taken into account when determining the value relevant to the support claim.

As a result, transferring significant assets before death does not necessarily guarantee that those assets will be irrelevant when the support contribution is calculated.

This is particularly important where substantial gifts are made as part of an estate plan that significantly reduces the property remaining in the succession.

Support claims and the role of the liquidator

The liquidator of an estate has an important role when potential support claims exist.

Before distributing the estate, the liquidator should understand the deceased’s family situation, determine whether support payments were being made and identify persons who may have a potential claim.

Relevant documents may include the last Will, divorce or separation judgments, support agreements, proof of support payments, information about dependent children, financial statements and documents concerning significant gifts made before death.

Depending on the type of claim, an agreement among the interested parties may be necessary. Where the amount cannot be agreed upon, the dispute may ultimately have to be determined by a court.

Last Wills in blended families

The interaction between a last Will and support obligations is especially significant in blended families.

Consider a person who has children from a first relationship, pays support to a former spouse and is now married to another person. The Will might leave most or all of the estate to the new spouse.

After death, however, the Will may be only one part of the financial analysis. Potential support claims, the rights of the surviving spouse, matrimonial consequences, the children’s rights and the deceased’s other obligations may all have to be considered before the beneficiaries receive their inheritance.

A similar difficulty can arise where one child is financially independent while another remains dependent because of age, education, disability or other circumstances. Equal testamentary gifts do not necessarily mean that the financial consequences for the children will be identical.

Planning a Will when support payments exist

A person who pays child support or spousal support should take those obligations into account when preparing or updating a last Will.

Estate planning can consider the anticipated value of the estate, the needs of dependants, existing support judgments or agreements, life insurance, beneficiary designations and the intended distribution among heirs.

The objective is not necessarily to reproduce existing monthly support arrangements indefinitely. Rather, it is to anticipate how support rights and testamentary wishes may interact after death.

A Will drafted without considering these issues can create unexpected claims, delays in liquidation and conflict among the surviving family members.

Practical issues after the death of a support payer

Following the death of someone who was paying child support or spousal support, several questions should be examined promptly:

Was support being paid under a judgment or agreement?

Who was receiving the support?

Are there children or other dependants who may still require financial assistance?

What does the last Will provide for those persons?

What property and debts form part of the estate?

Were significant gifts or transfers made before death?

Are life insurance or other death benefits available?

Has the six-month period for a potential support claim started to run?

Has the estate already distributed property to beneficiaries?

These questions can substantially affect how the estate should be administered.

The last Will is important, but it is not the entire picture

Quebec law gives individuals considerable freedom to determine the destination of their property through a last Will. That freedom nevertheless operates alongside certain family obligations.

Child support, spousal support and other obligations of support can therefore remain relevant after the payer’s death. A person who is excluded from a Will, or receives less than expected, is not necessarily without rights. Conversely, the existence of a support relationship does not automatically give the claimant an unlimited right to the estate.

The outcome depends on the relationship between the parties, the claimant’s needs and resources, the estate’s financial position, the benefits already received and the applicable limits.

For testators, beneficiaries, liquidators and persons receiving support, understanding this interaction early can help prevent an estate from being distributed before important obligations have been identified.

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].