On May 30, 2024, Québec's National Assembly adopted Bill 56, introducing an Act respecting family law reform and establishing the parental union regime. This Bill creates a new parental union regime that applies to de facto spouses who are the parents of the same child born or adopted after the coming into force of the legislation.
Much has been written about the impact of this bill on family law, particularly with regard to the separation of spouses in a parental union, but its impact on estate law has thus far received less attention.
Background
The reform introduced by Bill 56 follows many debates on the lack of regulation governing the relationship between de facto spouses in Québec. Since the famous 2015 decision in Quebec (Attorney General) v. A1, better known as Éric v. Lola, it has been well established that couples who are neither married nor in a civil union do not benefit from the various protections provided under both family and estate law regimes. The Supreme Court of Canada held that individual autonomy and choice was consistent with the Canadian Charter of Rights and Freedoms. As such, Canada's highest court found that the exclusion of de facto spouses from the application of these regimes was not discriminatory. The Court's reasoning to limit the protections afforded by these legal regimes to married couples and those in civil unions was based upon the notion of individual freedom to contract. In other words, it was presumed that spouses who were not married or in a civil union did not wish to be subject to the rights and obligations imposed by matrimonial and estate law regimes.
The Bill 56 is the result of several recommendations made by the Comité consultatif sur le droit de la famille (family law advisory committee) in recent years. One of the most important proposals was to stop differentiating between de facto spouse relationships and married couples, and instead differentiate between couples with children and couples without children. This notion received the support of Québec's National Assembly.
Bill 56 and Its Impact on Estate Law
Scope of Application
As of June 30, 2025, couples who meet the criteria of the new article 521.20 of the Civil Code of Québec ("CCQ") will be subject to the new estate provisions introduced by Bill 56. De facto spouses who become parents of the same child after June 29, 2025, will form a parental union under the law. The legal provisions will also apply to people who were already parents of the same child and who subsequently become or return to being de facto spouses. The Bill states that two people who live together and present themselves publicly as a couple are de facto spouses. In addition, the article creates a presumption whereby parents of the same child who live together are presumed to share a "community of life."
The Bill notably amends the rules governing the legal devolution of an intestate succession. The new provisions apply where the deceased has not made a will and the estate is settled in accordance with the terms provided by law. This legal devolution also occurs in circumstances where the will is incomplete or contains legacies that have lapsed.
Devolution of Estate to Surviving Spouse
The new regime introduced by Bill 56 amends the previous provisions applicable to the legal devolution of an intestate succession2, which did not grant any rights to a surviving de facto spouse. In fact, the provisions of the Civil Code of Québec that provided for the legal devolution of the deceased's estate expressly excluded a de facto spouse. Consequently, the surviving de facto spouse had no legal claim to the estate, unless otherwise provided in a will. In the absence of a will, the entire estate devolved to the deceased's children, parents, siblings or other family members.
Under the new parental union regime, de facto spouses who meet the above-mentioned criteria and who had been living together for more than one year prior to death are now included in the definition of "surviving spouse" in article 653 CCQ and therefore have the right to inherit from their intestate partner's succession. The requirement of a period of cohabitation is imposed only on de facto spouses in a parental union and does not affect married or civil union couples. Where this requirement is met and one of the spouses dies without a will, one-third of the deceased's estate devolves to the surviving de facto spouse, while the remaining two-thirds devolve to the children of the couple and to the other children of the deceased from a previous union, if any, pursuant to article 666 CCQ, which remains unchanged.
Compensatory Allowance
In addition, the new regime allows the surviving spouse of the parental union to obtain a compensatory allowance if they believe they have been impoverished after having contributed, in property or services, to the enrichment of their spouse over the course of their "community of life." Now, upon the death of a spouse, the court may order the payment of a benefit to the surviving spouse to compensate for their contribution to the deceased's patrimony.
The factors determining the compensatory allowance are: a contribution by the surviving spouse, an enrichment of the deceased's patrimony, a causal link between the two, the extent to which the contribution made the enrichment possible, and the absence of justification for the enrichment.3If, in the opinion of the court, the criteria are met, the compensatory allowance will be paid, all at once or by instalments, before the partition of the estate, since it is a debt owed to the surviving spouse. However, in determining this allowance, the court will take into account the benefits that the surviving spouse stands to receive from the estate.
Preferential Allocation
The Bill also introduces a preferential right of allocation for a surviving spouse in a parental union. Unless otherwise provided in the will, the surviving spouse may demand to receive specific property that is part of the estate, in priority over any other heir. This includes the family home or the right to its use, as well as its furnishings.
This new right granted to surviving de facto spouses is independent of their status as an heir or legatee. It is similar to the protection provided by the legal matrimonial regime for married or civil union spouses, and is intended to provide support for the surviving spouse, if necessary, and ensure stability for the children of the union. As such, the other heirs of the deceased cannot prevent the preferential allocation of these assets, which takes place before any partition of the mass of the estate. However, where the value of the property allocated to the surviving spouse exceeds the amounts owed to the surviving spouse by the estate, the surviving spouse will have to pay an equalizing sum.
Mandatory Nature
Unlike the provisions dealing with the effects of a parental union in the event of separation, the amendments to the estate provisions do not provide for the possibility of opting out of their application. The devolution of the intestate succession of a spouse in a parental union is strictly governed by the new legislation. As a result, couples who do not wish to be subject to these rules must expressly establish how their estates are to be transmitted in a will.
Conclusion
Under the new parental union regime introduced by Bill 56, the surviving spouse of a de facto union in which the spouses are parents of the same child and have lived together for more than one year at the time of death are now entitled to the same legal protection with regard to the estate as married or civil union spouses. The purpose of this Bill was to adapt civil law to the realities of today's families in Québec.
Footnotes
1. 2013 SCC 5.
2. In other words, in cases where the deceased has not made a will, the estate is settled in accordance with the terms provided by law. This legal devolution also occurs in circumstances where the will is incomplete or contains legacies that are invalid.
3. M. (M.E.) v L. (P.), [1992] 1 SCR 183.
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