To properly understand which assets are excluded from and included in the family patrimony, it is necessary to first examine the nature of the family patrimony.
As provided by article 414 of the Civil Code of Québec (CCQ), the family patrimony is established upon the celebration of marriage or civil union, without any particular action required on the part of the spouses. It should therefore be noted that the provisions of the CCQ relating to the family patrimony do not apply to common-law spouses. Nevertheless, the latter have the option of submitting themselves conventionally (by contract) to the family patrimony partition regime by means of a cohabitation agreement.
The provisions of the family patrimony apply to all married and civilly united spouses domiciled in Québec at the time of dissolution or separation from bed and board, regardless of where their marriage was celebrated. The objective of the family patrimony is to ensure economic equality between spouses by proceeding with a pecuniary redistribution upon separation.
Assets included in the family patrimony
According to article 414 of the CCQ, the family patrimony is “composed of certain property of the spouses regardless of which of the two holds a right of ownership over such property.” Thus, for property to be part of the family patrimony, it is imperative that one of the two spouses be the owner. It is therefore not necessary for both parties to have a right of ownership over the same property for it to be included in the family patrimony.
Furthermore, article 415 of the CCQ exhaustively lists the property that composes the family patrimony. Consequently, if property is not specifically mentioned in this article, it simply means that it is not part of it. According to article 415, paragraph 1 of the CCQ, the following property composes the family patrimony:
- The family residences or the rights conferring use thereof. It should be noted that the family patrimony is not limited solely to the principal residence, but encompasses all family residences.
- The movable property that furnishes or decorates them and that serves for the use of the household. Property that decorates the principal or secondary residence will be part of the family patrimony if it serves for the family’s daily use.
- Motor vehicles used for family travel. As soon as a vehicle is used for family travel, it will be included in the family patrimony. This applies even if the vehicle is not exclusively dedicated to family use, but one of the spouses uses it, for example, to commute to work.
- Rights accumulated during the marriage under a retirement plan. Only retirement rights accumulated during the marriage or civil union in a retirement plan mentioned in article 415, paragraph 5, of the CCQ are part of the family patrimony: “Earnings registered, during the marriage, in the name of each spouse pursuant to the Act respecting the Québec Pension Plan or equivalent programs.” According to article 415, paragraph 2 of the CCQ, these earnings are an integral part of the family patrimony.
Assets excluded from the family patrimony
First, according to article 415, paragraph 3 of the CCQ, “if the dissolution of the marriage results from death, the earnings referred to in the second paragraph as well as the rights accumulated under a retirement plan governed or established by an act which grants the surviving spouse the right to death benefits” are excluded from the family patrimony.
Furthermore, article 415, paragraph 4 of the CCQ provides that if property has been acquired by succession or gift, it will be excluded from the family patrimony. It is important to mention that property that is the subject of a gift between spouses during the marriage is not excluded from the patrimony.
In conclusion, the family patrimony, defined by articles 414 and 415 of the CCQ, aims to ensure economic equity between spouses upon separation. Married spouses cannot derogate from it at the time of union, but common-law spouses may submit to it voluntarily. Furthermore, the family patrimony includes, among other things, residences, furniture, vehicles, and retirement rights. However, certain property, such as that acquired by succession, is excluded from it.
Tips for organizing the family patrimony
- Maintain separate accounts for separate property and document all use.
- Retain all supporting documents from the beginning of the marriage or common-law union.
- Have property appraised at the time of marriage if the spouses are already owners.
- Consult a notary before marriage to understand the implications and nature of the family patrimony.
- Consider a marriage contract to clarify certain specific exclusions.
- In case of separation: act quickly to gather evidence of exclusion.
FAQ Suggestion
Is an inheritance received during marriage excluded from the family patrimony ?
Yes, an inheritance received during marriage is excluded from the family patrimony. Article 415, paragraph 4 of the CCQ provides that if property has been acquired by succession or gift, it will be excluded from the family patrimony.
Is the furniture in my secondary residence shared upon divorce ?
Yes, property, including furniture that decorates the principal or secondary residence, is part of the family patrimony if it serves for the family’s daily use.
How do I prove that property was acquired with my inheritance ?
To prove that property was acquired, all supporting documentation must be retained and the legacy, deposit, and/or transaction in question must be traced.
Is my family cottage part of the family patrimony ?
The family patrimony includes, among other things, residences, furniture, vehicles, and retirement rights, as well as the cottage, if applicable. However, if the cottage was acquired by succession by one of the spouses during the conjugal period, it will be excluded from it.
Are RRSPs excluded from the family patrimony ?
No, RRSPs are included in the family patrimony. However, only the rights accumulated during the marriage are part of it.
