A common law relationship is when a couple lives together but are not legally married or in a civil union. This is called a de facto union in Quebec. A couple must live together for at least two years to be considered a de facto couple for tax purposes, and at least three years for pension purposes.
Understanding common law in Quebec
Common law status is referred to as de facto status in Quebec. It is notably different from other marital statuses such as married, civil union, and single.
In other provinces like British Columbia, Manitoba, Saskatchewan, and Northwest Territories, your common law partner has inheritance rights. In Quebec, de facto partners are not considered heirs and do not inherit anything if their partner dies without a will (intestate).
To be considered as a de facto union in Quebec, you must live together with your partner for at least two years. This requirement remains the same even if you have children with your partner.
Estate planning for common law partners
If you are in a de facto relationship in Quebec, you will not be legally recognized as your spouse's heir. This means that if you or your partner pass away without a will, the surviving partner will not automatically inherit anything.
To make sure this doesn’t happen, you and your spouse can take certain steps in your estate plans to protect each other. These include naming each other in your wills and adding each other as legatees for insurance policies and investment accounts.
Legal Rights and Will-Making
De facto couples do not have the same inheritance rights as couples that are married or in a civil union. If you wish to leave some of your property (such as your share of a family home) to your de facto partner, you need to specify your wishes in a legal will.
If your partner isn’t mentioned in your will, your property will be divided between your heirs using the rules of Quebec’s succession law, which is outlined in the Civil Code of Québec. This is typically the order of distribution:
- If you have a surviving married or civil union spouse but no children, your spouse gets 100% of your estate.
- If you have a married or civil union spouse and children, your spouse gets 1/3 of your estate and the remaining 2/3 is divided equally between your children.
- If you only have children, your entire estate is divided evenly among them.
- If you have a married or civil union spouse but no children and your parents are surviving, your spouse gets 2/3 of your estate and the other 1/3 is divided between your parents. If one of your parents is deceased, the other gets their share.
- If you have a married or civil union spouse, no children and no parents, but have siblings, your spouse gets 2/3 of your estate and the other ⅓ is divided among your siblings.
If you made a cohabitation agreement at the start of your relationship, this can be a good resource for understanding who has ownership rights to which assets – and which assets, in turn, would be part of your estate or your partner’s.
Drafting wills in Quebec
Quebec’s requirements for how to make a legal will differ depending on what type of will you make. What remains consistent, however, is that each will must be:
- Created by someone who is over the age of majority (18 in Quebec) and of sound mind (the testator must have the capacity to create a will and understand its effects and contents)
Exceptions to this rule are made in specific circumstances. For example, you may be allowed to make a legal will before turning 18 if you are married or your assets are of little value.
Types of wills in Quebec include the following:
- Holographic (handwritten) wills: This type of will is handwritten (not typed) and signed by you (the testator). While this is the only type of will that does not require the presence of any witness, it is the least recommended type of will because it’s common to make contradictions and/or errors while writing them.
- DIY will kits: A will kit provides template documents with fill-in-the-blank spaces for you to write your wishes. They are one-size-fits-all, and they don’t provide any customization or flexibility, which isn’t always ideal. Additionally, you’d need to purchase a new kit every time you make updates to your will.
- Online wills: Platforms like Willful work with estate lawyers in Quebec to build legally-valid wills and then ask you a series of questions about your unique life situation to create a completely customized document tailored to your case. They’re easier, faster, and much more affordable than making a will with a lawyer or notary. Plus, Willful provides free unlimited updates!
Estate lawyers and notaries: Certified legal professionals like estate lawyers or notaries are able to create completely customized wills for any case, regardless of how complex. The difference between these two professionals is that notaries are the only people who can execute and register notarial wills.
How to write a will in Quebec
- Think about your testamentary dispositions and how you want to divide your succession. Who gets what? Also, consider who you would like to be your liquidator, the person who manages and distributes your assets to legatees, and who you may want as a Tutor or caregiver for any dependent children or pets.
- Choose which type of will you would like to make by weighing different factors, including affordability, ease of use, the probate process, and whether you need legal advice.
- Draft and execute your will by signing it and witnessing it (if you’re not making a holographic will). Each person must make and sign their own will. Couples cannot share wills, and you cannot legally create a will for someone else.
- Store your will in a safe place and make sure your partner and Liquidator know where it is.
- Review and update your will whenever your wishes or life changes to make sure it best reflects your current circumstances.
Tips for protecting your assets in a de facto union
- Make sure you have an ongoing and up-to-date inventory of each person’s personal property and debts. This should include your bank accounts, life insurance policies, and investment details.
- Have at least one separate bank account. This is helpful because a jointly owned account can be frozen if one of the owners dies. Your bank or financial institution is still required to send the surviving owner or the liquidator the succession, but it helps to have an account to put it in.
- To make asset protection easier, keep important documents in a place both your partner or liquidator know about. This includes your will, power of attorney documents, cohabitation agreements, asset lists, and more. A safe or safety deposit box is usually a good place to store them.
How do you prove common law in Quebec?
Proving you’re in a de facto union in Quebec will likely require documentation as proof. Often, this is through a cohabitation agreement, possibly with other documents such as;
- Proof of shared ownership of residential property, or
- Joint leases or rental agreements, or
- Bills for shared utility accounts, or
- Important documents for both you and your partner showing the same address
Common misconceptions and challenges
Legal rights for common law couples in Quebec are different than for married spouses or those in a civil union. Here are some other points to remember:
- De facto couples do not have the same property rights as married spouses. In Quebec, married spouses have specific rights to the family or matrimonial home, regardless of whose name is on the title. Couples in de facto unions do not have the same automatic rights to the family home or any other property acquired during the relationship.
- Married spouses have rights to medical decision-making for their partner, especially in situations where the partner is incapacitated. De facto partners may find it challenging to prove similar decision-making authority, especially without formal legal documentation, such as a healthcare proxy or mandate.
- To make sure your partner receives survivor benefits or pension benefits, de facto couples should name their partner as a beneficiary on their income and insurance policies.
Protect your partner today
When you and your partner both have wills, you ensure that your wishes are documented and your loved ones are protected – no matter what your marital status is.
In 20 minutes, you can create your will and get lasting peace of mind for the future.
