Ask the Hammer

Sometime ago I wrote an article about Wills (November 2014).  Due to recent stories in the news, or from callers-in to Dr. Laurie Betito’s “Passion” radio show, further examination of the issue of inheritance between non-married couples bears mention.

As many of you know by now, I strongly advise all couples to conclude pre-marriage/cohabitation contracts. I advance this advice based on the fact that 50% of couples split and it is not the time when emotions are heated to put forth your entitlement positions. It is beforehand when you are (presumably) happy with each other.

Most couples accumulate wealth over time . . .

why not determine in advance

what happens if you part ways (or if one dies)

The argument that you have no assets going in so why get a pre-nup begs the question, do you plan on having no assets going out? Most couples accumulate wealth over time and it is therefore important to determine in advance what happens to it should you choose to part ways down the road (or if one dies).

But even more unsettling is what can befall unmarried couples who have lived together for long periods of time where one or both were previously married and supposedly divorced before 1985. If the divorced person did not, for whatever reason, obtain a Decree Absolute of Divorce, and then dies, the surviving partner may be surprised to learn that the previous spouse stands to inherit from the deceased’s Estate and/or receive pension benefits.

This legal predicament can effect survivor pension benefits as well as the allotment to be received from the R.R.Q. [Régime des Rentes du Québec], which normally go to the surviving “spouse”.  However, if the divorce was not finalized pursuant to the Divorce Act 1968, and assuming the 1st “wife/husband” is still alive, she/he could be entitled to the employee survivor pension and the R.R.Q.

If you have not obtained a Decree Absolute of Divorce,

you are not actually divorced

It doesn’t matter that Tax Departments consider you a “spouse” under the Tax Act, for the purposes of deductions and income splitting.  If the strict procedure of applying for and obtaining a Decree Absolute of Divorce has not been followed, you are not actually divorced, ergo the actual “wife/husband” has a legal claim.

The confusion was clearly demonstrated in the case of Claudette Marquis, who spent 43 years living with her partner (they even had a child together) and is a cautionary tale.  Her partner had failed to obtain the Decree Absolute, thinking the Decree Nisi was his Divorce Judgment. It wasn’t. After Ms. Marquis submitted the form to collect the survivor pension, it was denied. Ms. Marquis then proceeded to file a claim via the TAQ (Tribunal Administratif du Québec) which she lost and that Judgment paved the way for the 1st wife, now widow, to obtain the Alcan Employee Pension Plan where the deceased had worked for 38 years!

Be aware that Pension Benefits may be affected

In my opinion, Ms. Marquis should have presented instead an Application in the Divorce file of her late partner instead of going to the TAQ (which entity could have been made a Mis-en-Cause/3rd party to the procedure).

Alas, such was not her case. So if you, or some couple you know, have been together for decades and are not married and one of you was divorced prior to 1985, make sure your Judgment is a Decree Absolute. If not, get it now before there is a death in the relationship.

Me. Hammerschmid has practiced Family Law since 1982; Senior Partner at Hammerschmid & Associates; founding & current member of Family Law Association of Quebec (past Secretary for 28 years). Inquiries treated confidentially: 514-846-1013 or [email protected] © 2016 Linda Hammerschmid