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Gifts in a marriage contract
What are gifts?
Spouses may decide to include gifts in their marriage contract. Donations can be made prior to marriage or civil union, or during the marriage if the marriage contract is formed after the marriage. In addition, these gifts can be modified at any time with the sole consent of the spouses in a new marriage or civil union contract.
As stipulated in article 1839 of the Civil Code of Québec, there are two types of gift in a marriage or civil union contract: inter vivos gifts and mortis causa gifts. Inter vivos gifts may be of furniture, real estate or money. There are therefore several possibilities open to spouses, bearing in mind that they are only required to respect public policy when making gifts. However, gifts must not be used to evade the rules governing the division of family assets. As a result, a gift of property forming part of the family patrimony may be valid in terms of the right of ownership given, but may not have the effect of excluding the property given from the family patrimony. Donations will be valid only if the marriage or civil union has been celebrated, otherwise they will be null and void.
The qualification given to the donation in the marriage or civil union contract does not necessarily determine the type of donation contained in the contract. Indeed, the marriage contract may state that the gift is inter vivos, when in fact it is a gift mortis causa, due to the terms used and case law. However, it is important to know how the gift is really classified, as this will help us to determine who now owns the property, and will also have an impact in the context of inheritance and divorce.
Inter vivos gifts
Anyone can decide to make an inter vivos gift by marriage contract. However, the persons entitled to benefit from this gift (the donees) are the future spouses, the spouses, their respective children and their common children already born or to be born. Inter vivos gifts generally involve assets already owned by the donor at the time of the gift. This type of gift is also intended to cover one or more identifiable items of furniture or real estate, rather than a whole. Inter vivos gifts are irrevocable and entail immediate divestiture of the movable, immovable or money. Inter vivos gifts can also be term gifts. In this case, the donor irrevocably undertakes to give the property in question to the donee. Inter vivos gifts may also be subject to a resolutory condition.
In the event of inheritance, the donee becomes a creditor of the estate. Moreover, in the event of divorce or dissolution of civil union, inter vivos gifts continue to exist and must be enforced.
In certain circumstances, a gift terminating on the death of the donor may even be treated as an inter vivos gift. Indeed, in certain cases, the donor’s death constitutes the end of the donation.
Gifts mortis causa
Donations mortis causa are generally conditional on the death of the donor. The property is only transferred to the donee at the time of death. There is therefore no immediate divestment of the object of the donation, which remains in the donor’s estate. In principle, gifts mortis causa are revocable, unless the clause itself expressly states that they are irrevocable. The gift may relate to assets already owned by the donor, or to future assets. In addition, as with inter vivos gifts, gifts mortis causa may be made to future spouses, spouses, their respective children, and common children already born or yet to be born.
In the event of divorce or dissolution of the civil union, gifts mortis causa made in consideration of the marriage or civil union will lapse and can no longer be claimed. Gifts mortis causa made to children should remain valid. On the other hand, in the event of legal separation, gifts mortis causa remain valid and may be claimed at the time of death, except in the case of a request for lapse, as provided for in article 510 of the Civil Code of Québec.
In the context of a succession, the type of gift mortis causa will be important in determining whether the donee is a simple heir or a creditor of the succession.
How can we tell them apart?
Because of their differences and the consequences they entail, it is important to distinguish between them. To qualify as an inter vivos gift, five criteria must be examined:
- Immediate divestment of the donated object (or the donor’s commitment to donate the goods);
- The donation is irrevocable;
- The terms of the gift used in the marriage contract;
- The intention of the parties;
- The determining facts;
If the conditions are not met, the gift will be a gift mortis causa, even if it was qualified as an inter vivos gift.
How we can help
Our legal toolkit includes a variety of online resources and links to templates and guides to help you better understand your obligations.
However, should the Legal Toolkit prove insufficient in your situation, you can obtain additional assistance by speaking with one of PSP Legal’s affiliated jurists:
Of course, if you prefer to have an experienced practitioner handle your situation, you can always request that one of the independent jurists affiliated with PSP Legal intervene on your behalf by clicking here. He or she will then be able to intervene directly and rapidly on your behalf by:
- Preparing, negotiating and drafting applications, procedures or any other legal documents related to your situation;
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- Guiding you through the choices available to you, leading to a fair and satisfactory solution.
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