Division of Property of an Intestate Deceased

Responsibility: Department of Justice

There are special rules regarding the division of the property of an intestate. An intestate estate is considered to be one where a person dies :

  • while under the age of 18;
  • without a marriage or civil union contract containing a testamentary clause;
  • with an invalid (not legally recognized) will;
  • with a will that only covers a portion of his or her property.

If there is no will at the time of a person's death, the succession is liquidated according to the provisions of the Civil Code of Quebec. It is then a legal succession.

Certain situations may also result in a legal succession, such as

  • the death of a person under 18 years of age
  • the absence of a marriage or civil union contract containing a testamentary clause
  • the presence of an invalid or non-legally recognized will
  • the presence of a will that concerns only part of the deceased's property.

In a legal succession, the heirs may appoint an executor or act collectively.

SUCCESSION

In preparation for the succession, the liquidator must verify several points, including

  • the existence of a notarized marriage or civil union contract, if the deceased has a surviving spouse
  • the presence of a testamentary clause in this contract, commonly called "To the last living person the property";
  • the existence of children, if there is no contract or clause.

In the case of a marriage or civil union contract with a testamentary clause, the surviving spouse becomes the sole successor. This clause usually stipulates that the deceased bequeaths all his or her property to the surviving spouse.

However, in the absence of a testamentary clause or a contract, the estate is divided as follows

  • between the spouse and children, if the deceased has children
  • between the spouse and other relatives, if the deceased has no children.

Depending on the situation, the legal estate may also be divided among the heirs as follows:

Children or their childrenSurviving spouseFather, mother, or one of the twoBrothers, sisters, or their progenyNephews and nieces
fullnon existingexcludedexcludedexcluded
2/31/3non existingnon existingnon existing
non exitingfullnon existingnon existingnon existing
non existing2/31/3excludedexcluded
non existing2/3non existing1/3excluded
non existingnon existingfullnon existingnon existing
non existingnon existing1/21/2excluded
non existingnon existingnon existingfullexcluded
non existing2/3non existingnon existing1/3
non existingnon existing1/2non existing1/2
non existingnon existingnon existingnon existingfull


Common law spouse and in-laws are excluded from the division of the estate.

Before the estate can be liquidated, the liquidator must divide the family patrimony and liquidate the matrimonial or civil union regime. In the case of the simultaneous death of the spouses, the family patrimony is also divided before the other assets. These are then distributed according to the law.

DIVISION OF THE FAMILY PATRIMONY

The family patrimony is divided according to the value of the assets that are part of it. This means that it is not the assets that are divided, but their monetary value. Thus, half of the net value of all these assets is attributed to the surviving spouse.

The other half is given to the heirs of the deceased, of which the surviving spouse may be one, in the proportions provided for in the Civil Code of Québec.

Note: The Civil Code of Quebec protects certain types of heirs. For example, the surviving spouse may request that the family residence and the furniture used in the household be attributed to him or her by way of preference.

LIQUIDATION OF THE MATRIMONIAL OR CIVIL UNION REGIME

The liquidation of the matrimonial or civil union regime consists of dividing the property that is not part of the family patrimony according to the rules of the regime that bound the spouses.

< Return to the Previous Page