While another reform of family law began in Quebec, an idea resurfaced: to change the law so that the de facto spouse is treated the same as a married spouse in the face of death. That is, to ensure that he can inherit the property of his deceased life partner in cases where the latter did not leave a will. Recent clues suggest that Quebec could legislate to regulate inheritance for de facto spouses, believes law professor Andréanne Malacket, which could affect many couples.
If this materializes, it remains to be seen how far the legislator will go, especially in matters of inheritance.
For many Quebecers, the suggestion may come as a surprise: doesn’t a de facto spouse already inherit in the same way as a married or civil union spouse?
But no, corrects Professor Malacket, who teaches at the Faculty of Law of the University of Sherbrooke. The common-law partner is treated differently in this regard, as in many other situations in life.
If his life partner dies without leaving a will, he will inherit exactly… $ 0. Even the Quebec state will inherit before it, she emphasizes.
“If you do not write a will, your parents and children will share your estate”: this is how de facto spouses are warned by the Quebec government in an information leaflet intended for them. Even the ex-spouse who has not taken the time to divorce will be preferred to him. Because when someone dies without leaving a will, the Civil Code of Quebec provides who can inherit and in what proportion. The common-law partner is missing from the list.
Obviously, common-law spouses can designate themselves as heirs in their respective wills.
But the proposal put forward, once again, deals with the other situation: where the deceased life partner did not write a will.
A change in this regard would not be trivial in Quebec, which can boast of being the province where the most people live in a common-law relationship. This is the case for 31% of Quebecers aged 25 to 64. The national average is 15%, according to the most recent figures from Statistics Canada, which date from 2019. The face of the Quebec family has changed a lot.
[Actuelle-ment,] if you do not write a will, your parents and children will share your estate
For Andréanne Malacket, it is high time to put aside legal principles from another era, “ill-suited to today’s family, to the family of the XXI.e century ”, and to treat de facto spouses like spouses for the transmission of the deceased’s property.
In the past, the idea was to protect the marriage and the children born of this union perceived as “respectable”, unlike “concubines”, as they were then called by the good right-thinking people, Church in support.
This principle of distribution of property at the time of death is based on the principle of “presumed affections of the deceased”, explained the professor. That is to say that in the absence of a will, the law “presumes” to whom the deceased would have wanted to bequeath his money and possessions, which means that his children inherit, as well as the surviving spouse. .
But not the common-law partner. Yet doesn’t he also have the “presumed affection” of the partner with whom he may have spent 30 or 40 years of his life and with whom he started a family? “It is not coherent”, slices the professor of law.
She devoted her doctoral thesis of more than 500 pages to this subject: the de facto spouse as legal heir, that is to say an heir provided for automatically by law. She has since submitted briefs to commissions revisiting family law. This questioning about the inconsistency of the law on this subject came to him in particular in the wake of the Éric v Lola case, which dealt precisely with the rights that de facto spouses have when they end their married life. The majority of the judges of the Supreme Court of Canada concluded in 2013 that there was discrimination and invited the Quebec state to reflect on its legislative system, she explains.
The professor indicates that he has had several opportunities to change the established order since the great family law reform of 1980, but that he chose not to intervene, in particular to protect children from a first union.
“We need reforms in family law. Our law is 40 years old, but in 40 years, Quebec society has evolved a lot, a lot. “
But, obviously, a change comes up against certain difficulties: first, it would be necessary to define what a common-law partner is. “It’s no small task,” she said.
Those responsible for social and fiscal laws in Quebec have already done the exercise, for example for the granting of benefits to the surviving spouse after a death caused by an accident at work or on the road. The definition normally includes a minimum period of cohabitation or requires the birth of a child, but nothing is uniform.
The subject is little discussed in the legal community, says Mr.me Malacket. First, because it is “not very sexy to talk about death, ”she explains, but also because another subject is more often discussed when it comes to de facto spouses: their need for protection during a romantic break-up.
Are there any disadvantages to recognizing the de facto spouse as legal heir?
“For me, no”, answers the professor bluntly. Because testamentary freedom remains whole and one spouse can disinherit the other without any difficulty.
Some provinces have gone ahead and recognized the common-law partner as the legal heir. We think here of British Columbia, Alberta, Saskatchewan and Manitoba.
In Quebec, the government has tabled, with its Bill 2, a first step in the reform of family law. This bill gives “clues” that the legislator is possibly more inclined than in the past to regulate the inheritance for de facto spouses, judge Professor Malacket. Because it gives them certain rights, such as the declaration of birth and the presumption of paternity.
The long-awaited section on marital relations therefore remains to come. And as to its scope, the mystery remains, she said.