Surviving Spouses in Quebec
Many people believe that, in the absence of a will, their spouse will automatically inherit all their property. In reality, Quebec law has rules that protect other family members first. This situation can have significant financial and tax consequences.
Understanding the consequences of inheriting without a will
1. Unmarried spouse: no inheritance rights
In Quebec, unmarried spouses have no legal right to inherit in the event of death without a will. No matter how long they have lived together or how much property they have accumulated, it is the children who inherit first. If there are no descendants, civil law favours parents, brothers and sisters, but never the unmarried spouse.
Spouses who are married, in a civil union or in a parental union fare slightly better, with an expected entitlement to 1/3 of the estate, with the remainder going to descendants. Even without children, other family members can reduce the surviving spouse's share.
2. Minor heirs: an administrative headache
Without a will, minor children can inherit directly, which entails major constraints:
The surviving parent becomes guardian and must manage the assets for his or her children.
If the value exceeds $40,000, the Curateur public oversees the management, which makes the process more cumbersome.
The surviving spouse does not have access to the assets for his or her own needs, only those of the children.
This legal framework can turn an estate into a real headache, far removed from the wishes of the deceased and the real needs of the family.
3. Death tax: a hefty bill
On death, assets not bequeathed to the spouse are deemed to be sold at fair market value. A bequest to a spouse allows for a tax rollover, transferring certain assets without immediate tax, a useful tool for preserving the value of assets.
This mechanism only applies if the spouse is an heir, which is not the case without a will. The result is a taxable capital gain, which can be very high, especially if the deceased owned a business, investments or property. Taxable capital gains mean tax to pay. Without planning, the estate may have to sell assets to cover the tax bill, reducing the inheritance of loved ones.
4. No will, no testamentary trust
Testamentary trusts are an important tool. It makes it possible to protect certain bequests made to minor children, to ensure professional management of the assets bequeathed and, sometimes, to defer tax. It makes it possible to appoint trustees to administer the estate and set clear rules for the use of the funds. This can help the deceased to pass on his assets in a way that corresponds to his intentions. Without a will, this possibility is lost.
Plan your estate and protect your legacy
Well thought-out estate planning avoids family conflicts and ensures that your wishes are respected. A will protects your spouse and children, while guaranteeing their financial security. Thinking today can make all the difference tomorrow.
FAQ - Surviving spouses and intestate succession
What happens if my spouse dies without a will in Quebec?
In the absence of a will, the Civil Code of Quebec determines the distribution of property.
The married or civil union spouse inherits a portion, while the children or other family members receive the rest. De facto spouses have no inheritance rights under the Civil Code of Québec.
Can a common-law spouse inherit automatically?
No. Even after several years of living together, a de facto spouse is not considered a legal heir in Quebec.
In order for them to receive a share of the estate, they must be named explicitly in a will. Otherwise, the deceased's children, parents or siblings will inherit.
How can you protect your surviving spouse?
A clear, valid will facilitates the transfer of assets. It allows you to bequeath directly to your spouse, take advantage of an immediate tax-free transfer of assets and reduce the administrative burden.
What happens to minor children's share of the estate?
Without a will, minor children inherit their share directly.
The surviving spouse then acts as guardian, but is accountable to The Public Curator if the value exceeds $40,000. The surviving spouse has access to the assets only for the needs of the children.
What are the tax implications of an estate without a will?
The deceased's assets are deemed to be sold at fair market value, which often generates a taxable capital gain. This can result in a substantial tax bill, sometimes forcing the estate to sell assets to pay the tax. Without a will, the tax rollover between spouses does not apply.