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Last Will and a Matrimonial Property Regime

Key Practical Takeaways

A last will does not operate in isolation from Quebec matrimonial property law. If a person dies while married or in a civil union, determining what passes under the will generally requires first determining the surviving spouse’s rights under the family patrimony and the applicable matrimonial or civil union regime. Only after those issues are addressed can the property forming the deceased’s estate be properly identified and distributed.

This distinction can produce results that are very different from what the wording of a will might initially suggest. A person may own a house alone and leave it to a child in a will, for example, but the surviving spouse may nevertheless have a substantial monetary claim arising from the family patrimony. Similarly, property that appears to belong exclusively to the deceased may be subject to consequences under the matrimonial regime before it becomes available for distribution to heirs.

As a practical matter, estate planning for a married person should therefore consider the will, family patrimony and matrimonial regime together rather than treating the will as a standalone document.

A useful planning checklist is to:

identify the matrimonial regime and locate any marriage contract;
distinguish property included in the family patrimony from other property;
determine who legally owns each major asset;
identify when and how important property was acquired;
consider the source of funds used to acquire or improve property;
review mortgages and other relevant debts;
identify gifts and inheritances received during the marriage;
compare the intended distribution under the will with the financial consequences of the matrimonial regime;
pay particular attention to the family residence and other real estate;
review beneficiary designations and other arrangements operating outside or alongside the estate; and
reconsider the estate plan after marriage, separation, divorce, acquisition or sale of important property, receipt of a significant inheritance, or a change of matrimonial regime.

A Will Does Not Determine Everything That Happens to Property at Death

A common misconception is that a will answers the basic question: “Who gets my property when I die?”

It certainly answers an important part of that question, but not necessarily the first part.

A will governs the distribution of property that ultimately forms part of the deceased’s succession. Before that distribution can occur, however, Quebec law may require financial rights arising from the marriage or civil union to be determined.

In a typical estate involving a married deceased, the analysis proceeds conceptually in three stages:

determine the consequences of the family patrimony;
liquidate the matrimonial regime; and
determine what remains in the succession and distribute it according to the will.

The rules governing the family patrimony take priority over inconsistent testamentary wishes, without simply cancelling the will.

This order is fundamental. A testator cannot simply use a will to make the surviving spouse’s existing matrimonial rights disappear.

What Is a Matrimonial Regime in Quebec?

A matrimonial regime establishes rules governing the spouses’ property and debts during marriage and, importantly for estate planning, the financial consequences when the regime ends.

Death is one of the events that terminates a matrimonial regime.

The principal matrimonial regimes encountered in Quebec are:

partnership of acquests, known in French as société d’acquêts;
separation as to property, known as séparation de biens; and
community of property, known as communauté de biens, which remains relevant particularly for certain older marriages.

Where spouses have not selected another regime in a marriage contract, partnership of acquests is generally the default regime. Older marriages can raise additional issues because the applicable default regime has changed historically.

A marriage contract can also contain provisions that have consequences at death, including certain gifts. It is therefore important not to review the will without also reviewing the marriage contract.

Family Patrimony and the Matrimonial Regime Are Not the Same Thing

This distinction is one of the most important concepts in Quebec estate planning.

The family patrimony and matrimonial regime are separate legal mechanisms.

The family patrimony applies to certain categories of property associated with family life. It can include family residences, furniture used to furnish or decorate those residences, vehicles used for family transportation and certain retirement rights. The applicable rules focus largely on sharing value rather than simply determining whose name appears on the title to an asset.

The matrimonial regime deals with property and financial rights outside the family patrimony according to the rules of the particular regime.

Accordingly, asking only, “Whose name is on the deed?” is often insufficient.

Ownership matters, but it is not necessarily the end of the analysis.

Can I Leave the Family Home to Someone Other Than My Spouse?

Potentially, but the answer requires more than reading the will.

Consider a simplified example.

Daniel is married to Sophie. The family residence is registered exclusively in Daniel’s name. Daniel’s will leaves the house to his daughter from a previous relationship.

It would be a mistake to conclude immediately that the daughter simply receives the house free of any matrimonial consequences when Daniel dies.

The residence may form part of the family patrimony. The financial consequences of the family patrimony must therefore be determined before the succession is distributed. The surviving spouse’s entitlement generally concerns a share in the net value of the family patrimony, rather than automatic ownership of half of every individual asset.

Daniel’s testamentary gift may still be relevant, but it operates against the financial reality remaining after the surviving spouse’s rights have been addressed.

This distinction becomes particularly important when the estate has limited liquid assets. A will may be legally coherent on paper but difficult to implement without selling, refinancing or otherwise dealing with real estate to satisfy competing monetary obligations.

Does Separation as to Property Mean the Surviving Spouse Has No Claim?

No.

The expression “separation as to property” can easily create the wrong impression in an estate context.

Under that matrimonial regime, spouses generally maintain separate patrimonial ownership in a way that differs significantly from partnership of acquests. But separation as to property does not, by itself, eliminate the family patrimony.

A house owned exclusively by one spouse may therefore still generate family-patrimony consequences if it is a qualifying family residence.

This is why a marriage contract stating that the spouses are separate as to property should not be interpreted as meaning, “Whatever is in my name can necessarily be distributed entirely through my will.”

Two different analyses may still be necessary: family patrimony first, and the matrimonial regime second.

How Does Partnership of Acquests Affect an Estate?

Partnership of acquests is particularly important because it applies automatically to many Quebec marriages where another matrimonial regime was not chosen.

Very broadly, the regime distinguishes between categories of property that receive different treatment when the regime is liquidated. The characterization of property can depend on factors such as when it was acquired, how it was acquired and, in some circumstances, the source of the money involved.

This means that a simple list of assets is not always sufficient.

Suppose a deceased spouse owned:

an investment account accumulated from employment income during the marriage;
an inheritance received from a parent;
a rental property acquired during the marriage;
savings accumulated before the marriage; and
a property acquired partly with funds traceable to an inheritance and partly with other funds.

Those assets should not automatically be treated identically merely because they were all registered in the deceased’s name.

The characterization exercise may materially affect the liquidation of the matrimonial regime and therefore the value ultimately remaining in the succession.

Another recurring misunderstanding is to equate a spouse’s financial entitlement with co-ownership.

These concepts should be kept separate.

A surviving spouse can have a right to receive value without already owning one-half of a particular house. Conversely, jointly owning an asset does not necessarily answer every question concerning the family patrimony or matrimonial regime.

This distinction matters greatly for real estate.

For each important immovable, it may be necessary to determine:

legal ownership;
whether it is or was used as a family residence;
when it was acquired;
its relevant value;
the outstanding mortgage or related debt;
whether particular deductions may be relevant;
the source of funds used to acquire it; and
how the matrimonial regime applies after the family patrimony analysis.

Only then can the consequences of a testamentary gift of that property be properly understood.

What Happens to Inherited or Gifted Property?

Receiving property by inheritance or gift can have important consequences under matrimonial property rules, but it should not be assumed that the words “inheritance” or “gift” automatically resolve every issue.

The nature of the original property, what happened to it afterward, and how funds were used can matter.

For example, suppose Marie inherits a substantial amount from her father and later uses some of that money in connection with a family residence. At Marie’s death, determining the financial consequences may require reconstructing the source and use of those funds.

This is one reason documentary records are important.

Bank statements, deeds of sale, mortgage documents, records of inheritances and gifts, marriage contracts and documents showing major transfers of money may become highly relevant years later.

What If the Will Leaves Everything to the Surviving Spouse?

Leaving everything to a spouse does not necessarily make the matrimonial analysis irrelevant.

The family patrimony and matrimonial regime still have to be considered because they help determine the respective rights of the surviving spouse and the succession before the testamentary distribution is completed. Quebec’s succession process expressly places the partition of the family patrimony and liquidation of the matrimonial regime before liquidation of the succession itself.

The distinction can also matter for debts, tax planning, renunciations, estate administration and the rights of other interested persons.

The fact that the surviving spouse is also the principal or sole testamentary beneficiary can simplify the practical result, but it does not erase the underlying legal steps.

What If the Will Leaves Everything to the Children?

This situation deserves particularly careful planning.

Consider a second marriage in which each spouse has children from a previous relationship. The spouses have chosen separation as to property. One spouse signs a will leaving the entire estate to that spouse’s children.

The testator may assume that separation as to property guarantees that result.

It does not necessarily do so.

At death, the surviving spouse’s rights arising from the family patrimony must still be considered. Depending on the assets, their values and the surrounding circumstances, the amount actually available for the children under the will may therefore be different from what the testator expected.

This does not mean that leaving an estate to children is inherently ineffective. It means that the testamentary plan should be tested against the matrimonial consequences before assuming what the children will actually receive.

A Will Cannot Simply Override the Family Patrimony

The family patrimony is particularly important because spouses generally cannot use ordinary testamentary drafting to opt out of its mandatory consequences.

The surviving spouse may have choices after death in relation to rights arising from the family patrimony, subject to applicable requirements. But that is very different from the deceased unilaterally eliminating those rights through a will. Quebec government guidance expressly notes that a will cannot circumvent the family-patrimony rules.

A clause such as “I leave all of my property to my children” therefore does not mean that matrimonial consequences are skipped.

The better question is:

What property and value will remain in the succession after the rights created by the marriage have been determined?

Marriage Contracts Can Change the Analysis

A proper estate review should include the marriage contract, if there is one.

The contract can identify the matrimonial regime and may contain other provisions affecting the spouses’ rights, including gifts or arrangements intended to operate upon death. Quebec law permits marriage contracts to address both the matrimonial regime and certain dispositions associated with death.

Marriage contracts are therefore not merely documents relevant to divorce.

In some estates, an old marriage contract that has not been reviewed for decades becomes one of the most important documents in determining the surviving spouse’s rights.

De Facto Separation Does Not Necessarily End the Matrimonial Regime

Another significant risk arises when spouses have separated in practice but have never formally ended their marriage.

Living apart does not by itself mean that the spouses should be treated as divorced for matrimonial purposes. A person can therefore die years after a factual separation while still legally married, with significant consequences for the estate.

An estate plan prepared before a separation should consequently be reviewed promptly when the relationship changes.

The will, beneficiary arrangements, ownership of property, marriage contract and status of divorce proceedings may all require separate consideration.

Divorce Can Affect Existing Testamentary Provisions

A divorce also creates consequences that should not be confused with the liquidation of the matrimonial regime.

For example, Quebec succession rules can affect a testamentary bequest previously made to a former spouse following divorce, subject to the wording and circumstances of the will.

The practical lesson is not to rely on an old will after a major change in marital status.

Marriage, separation, divorce and remarriage should each trigger a comprehensive estate-planning review.

What About Common-Law Partners?

The analysis is fundamentally different for unmarried spouses.

Traditional matrimonial regimes apply to married and civil-union spouses, not simply because two people have lived together for many years.

Quebec law now also contains a separate framework for certain spouses in a parental union. That framework should not be confused with the traditional family patrimony applicable to marriage or civil union, and its application depends on the couple’s circumstances.

For estate planning purposes, it is therefore dangerous to use “spouse” as though it always described one legal category.

A married spouse, civil-union spouse, spouse in a qualifying parental union and other de facto spouse may have substantially different rights.

The Will Should Be Tested Against Real Numbers

One of the most useful estate-planning exercises is to model what would actually happen if death occurred today.

Consider a hypothetical married person who owns:

a family residence worth $900,000 with a $250,000 mortgage;
a rental property worth $500,000;
investments of $300,000;
retirement assets;
a vehicle;
personal debts; and
property received through an inheritance.

A will leaving the “house to my spouse and everything else equally to my children” may sound straightforward.

It may not be.

The family residence may engage the family patrimony. Retirement rights may also require separate consideration. The rental property and investments may be affected by the matrimonial regime. The inherited property may require a different analysis. Debts must also be considered.

Only after these issues are worked through can the likely value of the gifts under the will be meaningfully estimated.

This is particularly important when the will contains specific gifts of real estate or fixed sums of money. An estate can be asset-rich but cash-poor, making an otherwise reasonable testamentary plan difficult to execute.

Estate Planning for Blended Families Requires Particular Care

Blended families frequently expose the interaction between wills and matrimonial regimes.

A person may want to protect a surviving spouse while ultimately preserving property for children from a previous relationship. Another person may want particular real estate to pass directly to children while ensuring that the spouse can continue living in the family home.

There are different ways to structure such objectives, but each involves trade-offs.

Giving the property outright to the spouse offers simplicity and control to the surviving spouse but may provide less certainty about what ultimately reaches the children.

Leaving property directly to the children may better preserve an intended inheritance but can create liquidity or occupancy problems for the surviving spouse.

More structured arrangements can sometimes balance competing interests, but they may add complexity, administration, cost and potential sources of disagreement.

Whatever structure is contemplated, the matrimonial rights arising before distribution of the estate still need to be incorporated into the analysis.

Foreign Property and International Marriages Can Complicate the Result

Private international law can become important when spouses married outside Quebec, previously lived in another jurisdiction, signed a foreign marriage contract or own real estate abroad.

It should not be assumed that Quebec rules automatically determine every matrimonial or succession issue merely because the deceased was living in Quebec at death.

Different legal systems may apply different connecting rules to matrimonial property, succession and immovable property. A foreign jurisdiction may also characterize a marriage contract or testamentary arrangement differently.

International estates can therefore require separate analysis of:

the matrimonial regime and the law governing it;
the validity and effect of a foreign marriage contract;
the law governing succession issues;
the location and nature of property;
foreign real estate rules;
the recognition of wills and estate representatives; and
tax and reporting obligations in more than one country.

International estate planning is particularly vulnerable to unintended results when a will prepared in one jurisdiction is later used after the couple moves elsewhere.

Practical Steps Before Making or Updating a Will

A well-designed will begins with understanding the property that will actually be available for testamentary distribution.

Before finalizing an estate plan, it is useful to assemble:

the existing will and any codicils;
the marriage or civil-union contract;
deeds for real estate;
mortgage statements;
current valuations of important assets;
investment and retirement statements;
evidence of significant inheritances and gifts;
records showing property owned before marriage;
information about major debts;
beneficiary designations; and
documents relating to property outside Quebec.

The next step is to classify the assets rather than simply list them.

For each major property, ask:

Who owns it? Is it part of the family patrimony? If not, how is it treated under the matrimonial regime? Is there a debt attached to it? Does its acquisition history matter? What would happen to it if one spouse died today?

Only after those questions are addressed does the final question become meaningful:

Who should receive what remains through the will?

In Quebec, a last will and a matrimonial property regime answer different but interconnected questions.

The will expresses how the testator wants the succession distributed. The family patrimony and matrimonial regime can determine important financial rights that must be dealt with before that distribution occurs.

For married and civil-union spouses, the sequence matters: family patrimony, matrimonial or civil-union regime, and then succession. Property registered exclusively in the deceased’s name is not necessarily property whose full value can simply be distributed under the will.

This is especially important for family residences, real estate, blended families, inherited property, spouses living apart, older marriage contracts and international estates.

Effective estate planning therefore requires more than deciding who should be named in a testament. It requires determining what property will actually form part of the estate once the legal consequences of the couple’s relationship have been taken into account.

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].