Dying without a will? | Quebec Law Network

Dying Without a Will? Here's How Your Assets Will Be Distributed

Me Marc Gélinas, Attorney, Jurismedia inc.



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    Importante note: The terms “married” and “marriage” in this text include both marriage and civil union according to the Civil Code of Quebec. The term “spouse” also refers to someone who is married or in civil union. Common-law partners (meaning living together but not legally married or in civil union) are not recognized as legatees in the case of an interstate succession (also called “heir at law”).


Introduction

When a person dies without a will (or if they are married, the marriage contract does not include a clause that has the same effect as a will), it becomes what we call an intestate succession, which means a succession without a will, which is devolved according to the rules provided by law, failing for the deceased to have manifested his last wishes.  The same applies if the deceased has actually drawn up a will, but without having disposed of all of his property by will, the property that has not been passed on  will be subjected to the rules of devolution (division of property) provided by law.

The Civil Code of Quebec has established rules of devolution (division) according to the different categories of your family who may survive your death.  There are many possibilities.  In general, it is safe to say that the relatives closest to you have more chance to inherit than more distant relatives.

You are married or in civil union and have surviving children

If you die without a spouse (excluding common-law partners) but have children or grandchildren, they will inherit all of your possessions.  If all of your children are still alive at the time of your death, they will share your assets equally.  If one of your children has passed, their portion will be left to their surviving children.  This is called the representation.  Using the same example, if one of your grandchildren from your deceased child has also died but has children, the same principle would apply to your great-grandchildren.

If at the time of your death you are married and have children, your spouse will get a third of your assets and your children will share the rest (and their children will share if the parent is dead). 

Other than your surviving spouse (to whom you have to be legally married), no other category of parents can inherit as long as you have children.  So when you have children, these rules apply. If you don’t have children, it is another story. 

You don't have children but have a surviving spouse (someone you are married to or in civil union). You also have parents, brothers and sisters, or nieces and nephews

In the following scenario, we assume you don’t have any children. If your spouse and parents survive you, your spouse will inherit one-third of your assets while your parents, or the surviving parent, will get the rest.  If your parents are deceased, then your spouse will get 2/3 of your assets and the other third will be divided among your brothers and sisters.  In this scenario, the representation could apply to the children of your siblings only (in other words, to your nieces and nephews but not to their children).  It is different from the representation that is applicable to great-grandchildren.

If you do not have a surviving spouse at the time of your death, and your parents (or one of them) as well as your siblings, nieces or nephews survive you, your parents will then get half of your estate, and the rest will be shared by your brothers and sisters (with the representation of your nephews and nieces, if applicable).  In all those cases, we referred to your siblings, but note that if you have half-brothers or half-sisters, the inheritance will be divided first between the brothers and sisters who have the same mother and father as you.  So your half-brothers and half-sisters will always receive less than your brothers and sisters.

If your spouse survives you but you have no relatives left, your spouse will inherit everything. If your spouse and your parents do not survive you, but you still have brothers and sisters, they (or their children, if applicable) will inherit your assets.  The same applies if you do not have a surviving spouse or brothers, sisters, nieces or nephews, but if your parents (or one of them) are still alive, they will inherit your assets.

NOTE: A couple living in a common law union, meaning not legally married or in civil union according to the law, regardless of the number of years they have lived together and despite the birth of any children, the couple will not have the same benefits if it is not written in a will made according to the rules of the Civil Code of Quebec.  In other words, if you want your common law spouse to inherit, it has to be written in a will.

You don't have any children, husband or wife, and no other family members

If none of these categories of relatives survive you, then other relatives will be able to inherit.  In legal jargon, we are talking about ordinary ascendants (grandparents, great-grandparents, etc.) and ordinary collaterals (uncles, aunts, cousins, grandnephews, etc.), as opposed to the privileged ascendants that are the parents and privileged collaterals that are your brothers and sisters, nephews and nieces.  But it doesn’t stop there.  In ordinary collaterals, we make a distinction between those who come from privileged collaterals and the other ordinary collaterals.  So your grandnephews and grandchildren or their descendants, if any, will inherit half of your estate, and the other half will devolve to ordinary ascendants or other ordinary collaterals.  If there is no descendant of your privileged collaterals, all of your assets will go to the ascendants or other ordinary collaterals, and vice versa.

Whenever it is a question of sharing the estate or part of it between the ordinary ascendants and the other ordinary collaterals, your assets are divided (or the portion to be divided) equally between the paternal line and the maternal line.  If you leave no parent in one of these lines, the other line will inherit all.  In each of these lines, if your grandparents are alive, they inherit the share attributed to their line.  If they are deceased, then the share they would have been entitled to will be divided equally among their descendants of the nearest level.  So, if you have uncles and aunts, they will inherit.  Otherwise, it will go to your cousins and so on.  If your grandparents are deceased and none of their descendants have survived you, then we go back to your great-grandparents. And failing them, their descendants will inherit according to the same rules. Otherwise, the same rules continue to apply until the “successor” (“kinship”) degrees or relationships are exhausted.

Parents who could inherit are the relatives that do not exceed eight degrees of kinship. Calculation of degrees between collaterals is done by going back to your common ascendant and counting one degree.  For example, the bond between a father and his son is a kinship relationship in the first degree.  Your relationship with your grandfather is a second-degree relationship.  However, the relationship with your brother is also second degree, because you both go back to your father.  In the same way, your first cousins have a fourth-degree relationship with you because they go back to your father or your mother, then to your grandparents. Then we go down to your uncle and aunt (third degree) and finally to your cousins, which is fourth degree. 

To know more about the order of dividing your estate, consult articles 666 to 683 of the Civil code of Quebec

Summary tables of intestate succession

These tables will help you visualize the different possible situations:

First situation: you are married or in a civil union
Married with no children (and no grandchildren): 2/3 spouse 1/3 father and mother
Married with one or more children (or grandchildren, great-grandchildren, etc.): 2/3 children

(The portion of a deceased child will be shared between the other children.  The same applies to descendants of subsequent generations)

1/3 spouse

Married with no children, no father and no mother:

2/3 spouse 1/3 brothers and sisters

(or nephews or nieces if one or more brother or sister is deceased. The children of the nephews and nieces will share the part their parents would have received.)

If there are half brothers or half sisters:

1/6 goes to those with the same father, including the brothers and sisters

1/6 goes to those with the same mother, including the brothers and sisters

Married with no children, no father, no mother, no brother, no sister, no nephew, no niece: 100% spouse
Second situation: you are not married (or your spouse is deceased)

Children (or grandchildren or other descendants):

100% children

(The portion for a deceased child will be shared between the other children, if applicable. The same applies to descendants of subsequent generations)

No children (nor other descendants):

1/2 brothers and sisters

(or nephews or nieces if one or more brother or sister is deceased. The children of the nephews and nieces will share the part their parents would have received.)

If there are half brothers and half sisters:

1/4 for those with the same father, including the brothers and sisters.

1/4 for those with the same mother, including the brothers and the sisters.

1/2 father and mother
No children (nor other descendant), no brother, no sister, no nephew, no niece: 100% father and mother

No children (nor other descendant), no father, no mother:

100% brothers and sisters

(or nephews or nieces if one or more brother or sister is deceased. The children of the nephews and nieces will share the part their parents would have received.)

If there are half brothers or half sisters:

1/2 for those with the same father, including the brothers and sisters.

1/2 for those with the same mother, including the brothers and the sisters.

Third situation: You have no children, no spouse, no parents, no brother or sister, no nieces or nephews
Descendants of nephews and nieces (that is, grandnephews, great-grandnephews, etc.) and ordinary ascendants* or other ordinary collaterals**

1/2 grandnephews, nieces, or great-nephews or great-nieces, or their other descendants.

1/2 Ordinary ascendants or other ordinary collaterals according to the rules detailed at the bottom of this table.***

Grand nephews, great-nephews, etc., but no ordinary ascendants or other ordinary collaterals:

100% - grandnephews, nieces, or great-nephews or great-nieces, or their other descendants.

Aucun descendant de neveux ou nièces :

100% - Ordinary ascendants or other ordinary collaterals, according to the rules detailed at the bottom of this table. ***

    *Ordinary ascendants: grandparents, great-grandparents, etc.
    * *Other ordinary collaterals: Uncle, aunt, cousin, great-uncle, great-aunt, little cousin, etc.
    *** Sharing between ordinary ascendants and other ordinary collaterals


I. Distribution between the paternal line and the maternal line:

Kinship on the side of father and mother: 1/2 maternal line 1/2 paternal line
Kinship on father's side only (no survivor on mother's side): 100% paternal line
Kinship on mother's side only (no survivor on father's side): 100% maternal line

II. Order of priority, between the ordinary ascendants and other ordinary collaterals in each of the lines:
  1. Grandsparents
  2. Descendants of grandparents (uncle, aunt, cousin, etc.) to the nearest degree.
  3. Arrière grands-parents
  4. Descendants of the great-grandparents (great-uncle, great-aunt, little cousin, second cousin, etc.)
  5. Forefathers (in French "Aïeux")
  6. Descendants of your forefathers

This principle continues to be applied until "successor" parents are exhausted, that is up to an eighth-degree kinship.


Forth situation: You don't have any relatives who could inherit (or they have renounced any inheritance from your estate)

The Province of Quebec will inherit all of your assets that are in the province.


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Last update: March 15, 2018


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