Lacombe Avocats

LEGAL DEVOLUTION OF SUCCESSIONS

CHAPTER I

HEIRSHIP

653. Unless otherwise provided by testamentary provisions, a succession devolves to the surviving married or civil union spouse and relatives of the deceased, in the order and according to the rules provided in this Title. Where there is no heir, it falls to the State.

654. The surviving spouse’s heirship is not dependent on the renunciation of his or her rights and benefits by reason of the marriage or civil union.

CHAPTER II

RELATIONSHIP

655. Relationship is based on ties of blood or of adoption.

656. The degree of relationship is determined by the number of generations, each forming one degree. The series of degrees forms the direct line or the collateral line.

657. The direct line is the series of degrees between persons descended one from another. The number of degrees in the direct line is equal to the number of generations between the successor and the deceased.

658. The direct line of descent connects a person with his descendants; the direct line of ascent connects him with his ancestors.

659. The collateral line is the series of degrees between persons descended not one from another but from a common ancestor.

In the collateral line, the number of degrees is equal to the number of generations between the successor and the common ancestor and between the common ancestor and the deceased.

CHAPTER III

REPRESENTATION

660. Representation is a favour granted by law by which a relative is called to a succession which his ascendant, who is a closer relative of the deceased, would have taken but is unable to take himself, having died previously or at the same time, or being unworthy.

661. There is no limit to representation in the direct line of descent.

Representation is allowed whether the children of the deceased compete with the descendants of a represented child, or whether, all the children of the deceased being themselves deceased or unworthy, their descendants are in equal or unequal degrees of relationship to each other.

662. Representation does not take place in favour of ascendants, the nearer ascendant in each line excluding the more distant.

663. In the collateral line, representation takes place, between privileged collaterals, in favour of the descendants in the first degree of the brothers and sisters of the deceased, whether or not they compete with them and, between ordinary collaterals, in favour of the other descendants of the brothers and sisters of the deceased in other degrees, whether they are in equal or unequal degrees of relationship to each other.

664. No person who has renounced a succession may be represented, but a person whose succession has been renounced may be represented.

665. In all cases where representation is permitted, partition is effected by roots.

If one root has several branches, the subdivision is also made by roots in each branch, and the members of the same branch share among themselves by heads.

CHAPTER IV

ORDER OF DEVOLUTION OF SUCCESSIONS

DIVISION I

DEVOLUTION TO THE SURVIVING SPOUSE AND TO DESCENDANTS

666. If the deceased leaves a spouse and descendants, the succession devolves to them.

The spouse takes one-third of the succession and the descendants, the other two-thirds.

667. Where there is no spouse, the entire succession devolves to the descendants.

668. If the descendants who inherit are all in the same degree and called in their own right, they share in equal portions and by heads.

If there is representation, they share by roots.

669. Unless there is representation, the descendant in the closest degree takes the share of the descendants, to the exclusion of all the others.

DIVISION II

DEVOLUTION TO THE SURVIVING SPOUSE AND TO PRIVILEGED ASCENDANTS OR COLLATERALS

670. The father and mother of the deceased are privileged ascendants.

The brothers and sisters of the deceased and their descendants in the first degree are privileged collaterals.

671. Where there are neither descendants, privileged ascendants nor privileged collaterals, the entire succession devolves to the surviving spouse.

672. Where there are no descendants, two-thirds of the succession devolves to the surviving spouse and one-third to the privileged ascendants.

673. Where there are no descendants and no privileged ascendants, two-thirds of the succession devolves to the surviving spouse and one-third to the privileged collaterals.

674. Where there are no descendants and no surviving spouse, the succession is partitioned equally between the privileged ascendants and the privileged collaterals.

Where there are no privileged ascendants, the privileged collaterals inherit the entire succession, and vice versa.

675. Where the privileged ascendants inherit, they share equally; where only one of the privileged ascendants inherits, he takes the share that would have devolved to the other.

676. Where the privileged collaterals who inherit are fully related by blood to the deceased, they share equally or by roots, as the case may be.

Where this is not the case, the share which devolves to them is divided equally between the paternal line and the maternal line of the deceased; persons fully related by blood partake in both lines and those half related by blood partake each in his own line.

If the privileged collaterals are in one line only, they inherit the entire succession to the exclusion of all other ascendants and ordinary collaterals in the other line.

DIVISION III

DEVOLUTION TO ORDINARY ASCENDANTS AND COLLATERALS

677. The ordinary ascendants and collaterals are not called to the succession unless the deceased left no spouse, no descendants and no privileged ascendants or collaterals.

678. If the ordinary collaterals include descendants of the privileged collaterals, these descendants take one-half of the succession and the other half devolves to the ascendants and the other collaterals.

Where there are no descendants of privileged collaterals, the entire succession devolves to the ascendants and the other collaterals, and vice versa.

679. The succession devolving to the ordinary ascendants and the other ordinary collaterals of the deceased is divided equally between the paternal and maternal lines.

In each line, the persons who inherit share by heads.

680. In each line, the ascendant in the second degree takes the share allotted to his line, to the exclusion of the other ordinary ascendants or collaterals.

Where in one line there is no ascendant in the second degree, the share allotted to that line devolves to the closest ordinary collaterals descended from that ascendant.

681. Where in one line there are no ordinary collaterals descended from the ascendants in the second degree, the share allotted to that line devolves to the ascendants in the third degree or, if there are none, to the closest ordinary collaterals descended from them, and so on until no relatives within the degrees of succession remain.

682. If there are no relatives within the degrees of succession in one line, the relatives in the other line inherit the entire succession.

683. Relatives beyond the eighth degree do not inherit.

CHAPTER V

THE SURVIVAL OF THE OBLIGATION TO PROVIDE SUPPORT

684. Every creditor of support may within six months after the death claim a financial contribution from the succession as support.

The right exists even where the creditor is an heir or a legatee by particular title or where the right to support was not exercised before the date of the death, but does not exist in favour of a person unworthy of inheriting from the deceased.

685. The contribution is made in the form of a lump sum payable all at once or by instalments.

The contribution made to the creditors of support, with the exception of that made to the former spouse of the deceased who was in fact receiving support at the time of the death, is fixed with the concurrence of the liquidator of the succession acting with the consent of the heirs and legatees by particular title or, failing agreement, by the court.

686. In fixing the contribution, the needs and means of the creditor of support, his circumstances and the time he needs to acquire sufficient autonomy or, if he was in fact receiving support from the deceased at the time of the death, the amount of the instalments that had been fixed by the court for the payment of the support or of the lump sum awarded as support are taken into account.

Account is also taken of the assets of the succession, the benefits derived from the succession by the creditor of support, the needs and means of the heirs and legatees by particular title and, where that is the case, the right to support which may be claimed by other persons.

687. Where the contribution is claimed by the spouse or a descendant, the value of the liberalities made by the deceased by act inter vivos during the three years preceding the death and those having the death as a term are considered to be part of the succession for the fixing of the contribution.

688. The contribution granted to the spouse or to a descendant may not exceed the difference between one-half of the share he could have claimed had the entire succession, including the value of the liberalities, devolved according to law, and what he receives from the succession.

The contribution granted to the former spouse is equal to the value of 12 months’ support, and that granted to other creditors of support is equal to the value of six months’ support; however, in neither case may such a contribution, even where the creditor was in fact receiving support from the deceased at the time the succession opened, exceed the lesser of the value of 12 or six months’ support and 10% of the value of the succession including, where that is the case, the value of the liberalities.

689. Where the assets of the succession are insufficient to make full payment of the contributions due to the spouse or to a descendant, as a result of liberalities made by acts inter vivos during the three years preceding the death or having the death as a term, the court may order the liberalities reduced.

Liberalities to which the spouse or descendant consented may not be reduced, however, and those he has received shall be imputed to his claim.

690. Any alienation, security or charge granted by the deceased for a prestation clearly of smaller value than that of the property at the time it was made is presumed to be a liberality.

691. Benefits under a retirement plan contemplated in article 415 or under a contract of insurance of persons, where these benefits would have been part of the succession or would have been paid to the creditor had it not been for the designation of a subrogated holder or a beneficiary, by the deceased, during the three years preceding the death, are considered to be liberalities. Notwithstanding any provision to the contrary, rights conferred by benefits under any such plan or contract may be transferred or seized for the payment of support due under this chapter.

692. The cost of education or maintenance and customary presents are not considered to be liberalities unless, considering the means of the deceased, they are manifestly exaggerated.

693. Reduction of the liberalities takes place against one of the beneficiaries or several of them simultaneously.

If need be, the court fixes the share payable by each beneficiary sued or impleaded.

694. Payment of the reduction is made, failing agreement between the parties, on the conditions determined by the court and on the terms and conditions of guarantee and payment it fixes.

Payment in kind may not be ordered, but the debtor may be discharged at any time by handing over the property.

695. Property is valued according to its condition at the time of the liberality and its value at the opening of the succession; if property has been alienated, its value at the time of alienation or, in the case of reinvestment, the value of the replacement property on the day the succession opened is the value considered.

Liberalities by way of a usufruct, right of use, annuity or income from a trust are taken into account at their capital value on the day the succession opened.

CHAPTER VI

RIGHTS OF THE STATE

696. Where the deceased leaves no spouse or relatives within the degrees of succession, or where all the successors have renounced the succession, or where no successor is known or claims the succession, the State takes, by operation of law, the property of the succession situated in Québec.

Any testamentary provision which would defeat this right without otherwise providing for the devolution of the property is without effect.

697. The State is not an heir, but is nonetheless seized of the property bequeathed, as is an heir, once all known successors have renounced the succession, or, where no successor is known or claims the succession, six months after the death.

It is not liable for obligations of the deceased in excess of the value of the property it takes.

698. Seisin of a succession which falls to the State is exercised by the Minister of Revenue.

No property of a succession may be mingled with the property of the State so long as it remains under the administration of the Minister of Revenue.

699. Subject to the Unclaimed Property Act (chapter B-5.1) and without any other formality, the Minister of Revenue acts as liquidator of the succession. He is bound to make an inventory and give notice of the seisin of the State in the Gazette officielle du Québec; he shall also cause the notice to be published in a newspaper circulated in the locality where the deceased was domiciled.

700. At the end of the liquidation, the Minister of Revenue renders an account to the Minister of Finance.

The Minister of Revenue gives and publishes a notice of the end of the liquidation in the same manner as for a notice of seisin of the State. He indicates in the notice the residue of the succession and the time granted to successors to assert their rights of heirship.

701. The Minister of Revenue, upon rendering account, transfers to the Minister of Finance the amounts constituting the residue of the succession, which then become the property of the State.

Heirs who establish their quality may, however, within 10 years from the opening of the succession or from the day their right arises, recover those amounts from the Minister of Revenue with interest capitalized daily and calculated from the time the amounts were transferred to the Minister of Finance, at the rate set under the second paragraph of section 28 of the Tax Administration Act (chapter A-6.002).

702. An heir who claims the succession before the end of the liquidation takes it in its actual condition, subject to his right to claim damages if the legal formalities have not been observed.

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