If you’re married, whether legally or common law, you’ve likely discussed creating a will with your spouse. There are several decisions you need to make in your will, from appointing a liquidator to choosing legatees, to choosing a tutor for your minor children if you have any. But how does it actually work when you create a will with your spouse in Quebec? In this article we break down common questions about how marital status affects your will and how to approach making a will with your spouse so you can feel confident you’re creating documents that reflect your wishes.
How Does Marital Status Affect My Will in Quebec?
If you’re thinking of creating a will in Quebec, you may not know that your marital status can have a huge impact on how you create it, and how your estate is distributed. Not to mention that if you pass away without a will, there are nuances you need to know about when it comes to your marital status. In Quebec, there is also the concept of marital regime, and it’s important to understand how your marital regime affects your estate. This section outlines what you need to know when making a will with a spouse.
If you’re divorced, a widow or widower, or single, you would select “single” as your marital status on Willful. This means you don’t have a legal spouse who is accounted for in your documents.
The biggest thing to note if you’re single is what happens when you get legally married. In some provinces, getting married revokes any previous will, unless that will specifically includes a clause in contemplation of marriage – in Quebec, marriage does not revoke a will.
If you’re in a common law relationship (also known as having a “de facto” spouse), getting a will means you can provide for your spouse, as the default rules in Quebec will leave your common law spouse with nothing if you pass away without a will.
Common law (de facto union)
In Quebec you are considered common law for tax purposes after living together for two years. Creating a will when you’re in a common-law relationship means that your “de facto” spouse will be provided for – it’s extremely important to understand that unless you are legally married, your spouse will be entitled to nothing if you pass away in Quebec. In other provinces, common law spouses can make a claim against the estate to get a share, but in Quebec, this is not possible (you can read more about the famous case of Eric vs. Lola, which found that common law spouses in Quebec are not entitled to anything).
In Quebec there is your marital status (are you married or not), and there is also your marital regime. Marital regime is unique to Quebec, and it determines the rules that apply to the division of your assets upon the dissolution of your marriage, either because of death or divorce. There are three marital regimes:
- Partnership of acquests - this applies to most couples who are legally married, and is the default marital regime
- Separate as to property - if you signed a marriage contract or prenuptial agreement, you are likely separate as to property
- Community of property - this was abolished when the new Civil Code was passed in 1994, but if you were married prior to that date, this could be your regime
If your marital regime is separate as to property, you may want to visit a lawyer to ensure any marriage contracts are referenced in your will. It’s important to note that a marriage contract is the only document other than a will which allows you to pass on assets after your death.
If you’re legally married, and your regime is a partnership of acquests, then your spouse not only has a right to a share of your estate if you don’t have a will, they may also have a right to 1) assets that form the partnership of acquests regime, and 2) what’s called the family patrimony. See the next section for more details.
What Is The Family Patrimony?
The concept of family patrimony is unique to Quebec. It says that your spouse has a right to a share of certain family assets under family patrimony rules, regardless of your marital regime. If you leave everything to your spouse, it is a moot point since they are already receiving all of your assets. But if you are not leaving 100% of your estate to your spouse (for example your spouse is one of several universal legatees), your spouse will have the capacity to double dip (receiving assets through your will, and through the family patrimony). If you want to force your spouse to choose either the family patrimony or a gift in your will, Willful may not be the right fit for you.
If you pass away before your spouse, any family homes, vehicles, and contributions to family plans comprise your family patrimony. By determining what is in your family patrimony, you determine how much your spouse is owed from your estate. In order to inherit via the will vs. the family patrimony, typically a spouse must renounce their rights to the family patrimony.
For example one spouse passes away and the family patrimony is calculated at $200,000. Under the terms of the will, the surviving spouse would stand to inherit $500,000. The surviving spouse would likely renounce their claim to the family patrimony, since it is substantially less money than what was left to them in the will.
With Willful wills, we don't have a clause that forces spouses to renounce their claim to the family patrimony - this means that a surviving spouse can double dip from both the family patrimony and legacies left to them in the will.
If you’re separated but not divorced, you are still legally married in the eyes of the law – which means you need to ensure your separation agreement clearly outlines what will happen upon the death of one spouse, and the will needs to work in conjunction with that separation agreement. If you do not address this, your ex-spouse may be able to make a valid support claim due to spousal rights.
Because of the nuances of separation, Willful cannot accommodate separation as a marital status at this time, and you may want to seek the advice of a family lawyer or estate lawyer.
One of the big catalysts for updating a will is divorce – after all, who wants their ex to get their assets when they pass away? In Quebec, your ex won’t receive anything thanks to provincial regulations. Divorce doesn’t result in your will being revoked (nullified), but it does mean that your ex-spouse will not be entitled to:
- A gift of specific property
- A gift from your residual estate
- Act as your liquidator or trustee, or accept any other appointments
In the event that you divorce in Quebec and you do not remove your ex-spouse from your will, the legislation treats the will as if your ex-spouse passed away before you.
Whether you’re separating or divorcing, it’s also important to review any joint assets or joint accounts you hold with your ex-spouse, and to update the named beneficiary on any life insurance policies.
Do I Have To Leave Assets To My Spouse?
Quebec law dictates that you may owe a moral and legal duty to spouses, children, and other dependents. While you do not have to include anyone in your will, if you leave a spouse or dependent out of your will, they may have a valid support claim against your estate after you pass away (not as an heir, but as a creditor). If it is your intention to do that, we recommend seeking independent legal advice.
Do Married Couples And Spouses Need Separate Wills In Quebec?
In Quebec, when you’re making a will as a couple, you’re each making your own document. You each have your own will that reflects your wishes and that distributes your assets, outside of anything owned jointly with your spouse or any life insurance policies with named beneficiaries. In your will you can appoint your spouse in key roles, and work with your spouse to make similar decisions so your wills are aligned. Think about it like your taxes: even when you file your taxes as a married couple, you each have your own tax returns.
How Do I Make A Will With My Spouse On Willful?
On Willful, each spouse gets their own account and creates their own documents, though you can decide on key decisions together (for example, a tutor for your children, or who your legatees will be).
Other Common Questions About Wills and Marital Status
What If I Want To Make One Will With My Spouse? Can I Do That?
In provinces other than Québec there is something called a “mutual will,” which allows two people - typically spouses - to make their wills and to include or add on an agreement that the other won’t change the will when they pass away. It is called a joint will if it is all contained in one document. These types of wills are not legal in Québec, and they are not common in other provinces. We do not accommodate them on Willful.
What Is A Mirrored Will?
A mirrored will allows certain choices to be “mirrored” in your spouse’s will - for example a mirrored will can default to leaving everything to your spouse when you pass away, and then it accounts for what happens if both spouses were to pass away at the same time. This can be limiting for some couples, since there isn’t flexibility to make individual choices - for example if your spouse was one of several legatees you wanted to leave your assets to, a mirrored plan wouldn’t be a fit. For that reason, we’ve shifted to offering individual plans at Willful. It’s also important to note that mirrored wills don’t include any legally-binding obligations, so the surviving spouse can edit their will after one spouse passes away. On Willful you can achieve the same result as a mirrored will by choosing the option to leave everything to your spouse when you pass away, like in the example below:
What Is A Joint Will Or Mutual Will?
We often get questions from couples who ask about joint wills. Joint wills are not legal in Quebec. In other provinces, a joint will outlines wishes of two or more people in one document (a joint will can also be a mutual will, which means it can’t be altered when one party passes away).
What If I Have A Blended Family And I Want To Ensure My Assets Pass To My Children When My Surviving Spouse Passes Away?
It’s quite common these days to have second marriages with children from previous marriages. In this case, spouses typically want to ensure that if they leave everything to their spouse when they pass away, the surviving spouse won’t be able to cut the children out of their will when they pass. Unless you have specifically planned for it, a surviving spouse can update their will at any time and remove any legatees. For that reason, couples with blended families may want to consider the following options:
- Creating a spousal trust - this allows you to pass to your spouse for their enjoyment while they’re alive, and upon their death the assets pass to your children
- Will alternatives - Another way to ensure assets go to your children is to name them as beneficiaries on life insurance policies - in that case, there will be some assets that won’t pass through the will, and will go directly to your children
At this time, Willful does not allow for the creation of spousal trusts.
There you have it – how your marital status affects your will, and how to approach making a will with your spouse. Reviewing your will annually is the best way to ensure it’s up-to-date and you make any necessary changes.