Family Patrimony

Responsibility: Department of Justice

The Civil Code of Quebec provides that the married or civil union spouse is entitled to half of the partitionable value of the family patrimony, provided that he or she has not renounced it.

The other half is allocated by will or, in the event of death without a will, according to the rules of the Civil Code.

The family patrimony constitutes the pooling of certain assets of a couple, regardless of which spouse owns them. Its institution guarantees the legal and economic equality of the spouses by ensuring that each of them has a fair share of this patrimony. All married or civil union couples are subject to it, regardless of their matrimonial or civil union regime and whether they have children or not.

The family patrimony consists of the following assets

• residences for the use of the family;
• the furniture used by the family to furnish these residences
• vehicles used for family travel;
• Pension plan benefits accrued during the marriage or civil union;
• Earnings registered during the marriage or civil union under the Quebec Pension Plan Act or equivalent programs.

Certain assets and earnings are excluded from the family patrimony.

DIVISION OF THE FAMILY PATRIMONY

The partition of the family patrimony is carried out following the dissolution of a union due to :

• a divorce
• a legal separation;
• a dissolution of a civil union;
• an annulment of a marriage or civil union;
• death.

This division is made according to the monetary value of the goods that are part of the family patrimony. In concrete terms, it is done in money or by transferring ownership of a property or a group of properties of a value equal to the amount owed to the spouse. The transferred property may not be part of the family patrimony.

Half of the net value of the family patrimony is thus attributed to each spouse.

However, the court may depart from the principle of equal division on application if it considers that this would result in injustice because of :

• the brevity of the union
• the squandering of certain property by one of the spouses
• the bad faith of one of the spouses.

After the partition of the family patrimony, the other property of the spouses is divided according to the matrimonial or civil union regime chosen.

Note: The rules for the partition of the family patrimony also apply to people married outside Quebec if they reside or are domiciled there at the time of the partition. However, they may not apply to civil union spouses outside Quebec because of the rules in effect in the country where their union was celebrated.

SECOND DIVISION

A second partition of the family patrimony may occur when spouses obtain a divorce judgment after having lived together again following a judgment of legal separation.

In this case, the rules of partition apply as of the date of resumption of life together instead of the date of marriage.

DIVISION UPON DEATH

When the family patrimony is divided due to the death of one of the spouses, the rules relating to the family patrimony take precedence over wills and testamentary clauses in marriage or civil union contracts. However, they do not override them.

In fact, before a succession can be liquidated, the liquidator must divide the family patrimony and liquidate the matrimonial or civil union regime. Thus, half of the value of the family patrimony is given 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 by the Civil Code of Québec.

In the case of a marriage or civil union contract containing a testamentary clause, the surviving spouse becomes the sole successor. This clause, commonly called "Last living the property", is a form of will that is similar to a notarial will. It usually provides that the deceased bequeaths all of his or her property to the surviving spouse. It may be revocable if the marriage or civil union contract so indicates.

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