Protecting Estate Inheritances from Family Law Claims

Most parents intend to leave at least a portion of their estates to their children. What some parents may not realize is that the inheritance they leave their children could turn into “divisible family property” down the road in the event a child’s spousal relationship ends. That reality means that if your child goes through a divorce, their ex-spouse may have a legal entitlement to some of the inheritance. This may produce a result that you never intended.

The intention of this article is to provide practical tips to try and avoid this result.

Firstly, the timing of the inheritance is an important factor.

If your child receives their inheritance prior to marriage or entering a common-law relationship, then they can claim an exemption for the inheritance pursuant to section 23 of The Family Property Act (Saskatchewan). What this means is that if your child later separates from their spouse they can claim that the value of their inheritance at the start of the spousal relationship should not be shared since they received it prior to the relationship.

However, if the inheritance is received after your child’s spousal relationship commenced they cannot claim an exemption for the inheritance i.e. they cannot claim that it should not be divided at all with their spouse in the event of separation. However, they can claim an unequal division of the inheritance under section 21 of The Family Property Act (Saskatchewan), which can help ensure that they keep more than half of the inheritance.

Secondly, it matters what your child does with their inheritance.

Homes and household good are treated specially under the law. For example, if they invest the inheritance into a house for their family to live in, they would lose the ability to claim an exemption even if the inheritance was received prior to the start of the relationship. The home would be, presumptively, equally divided between the parties. As another example, if your child uses their inheritance to purchase furniture (which is technically considered a household good under the legislation) they will not be able to claim that portion of the inheritance as exempt.

As a result, it’s a good idea to explain to your children that they should be careful how they spend their inheritance, and potentially seek legal advice before making any large purchases.

Because of how these items are treated differently, in general the best thing your child can do with their inheritance is keep it in a separate bank or investment account and not use the funds for family spending or purchases. This is, understandably, not practical in many cases. However, ideally if they have another source of funds to use for these purchases then those funds should be used rather than their inheritance, where possible.

Thirdly, your intention matters.

If there are ever disputes in the future over how much of an inheritance your child’s estranged spouse may be entitled to, one factor the court examines is what your intention in leaving the gift to your child was. This is why it becomes very important that you have a specific clause in your Will indicating that you only intend for your child’s inheritance to benefit your child, and not their spouse. We recommend you seek legal advice in drafting your Will to ensure the proper wording is included in this clause.

Read more on our blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

Reference Re an Act respecting First Nations, Inuit and Métis Children Youth and Families 2024 SCC 5

What does the Supreme Court decision mean for Métis government and citizens in Saskatchewan?

Recently, the Supreme Court of Canada released its decision in [Translated] Reference Re an Act respecting First Nations, Inuit and Métis Children Youth and Families 2024 SCC 5 (“the Decision”). The Court was tasked with answering the question: “is the Act respecting First Nations, Inuit and Métis children, Youth and Families (the “Act”) ultra vires (beyond the power of) the jurisdiction of the Parliament of Canada under the Constitution of Canada?

Departing from the conclusion of the Quebec Court of Appeal, which held that the reference question was constitutional, except for ss. 21 and 22(3), which were not, the Supreme Court concluded that the Act as a whole fall within Parliament’s exclusive legislative authority for First Nations, Inuit and Métis under section 91(24) of the Constitution Act, 1867.

Further, the Court found that the Act codified Parliament’s affirmation that section 35 of the Constitution Act, 1982 includes a right of self-government in relation to child, youth and family services setting out Parliament’s understanding of specific section 35 rights. While the affirmations are not final determinations on the scope of section 35, they do have legal effect and bind the Crown’s future conduct. The Crown can no longer deny the existence of this right.

What does that mean for Canada?

The outcome of the Decision is an affirmation of what Canada committed to in 2016 when its government made a commitment internationally to support and implement the United Nations Declaration on the Rights of Indigenous People (“UNDRIP”) “without qualification”. The Court provided its most substantive discussion on UNDRIP to date, which bodes well for future judicial consideration of UNDRIP to inform the interpretation of section 35 and the implementation of its Articles.

The Court strongly endorsed the Act as a form of “legislative reconciliation”, referring to how the Act weaves the affirmation of inherent rights, mechanisms for the exercise of FIRST Nations, Inuit and Métis legislative authority, federal minimum national standards, and international minimum standards together. Importantly, the Decision also identified the Act does not purport to be the source of these rights but proceeds on the premise that these rights exist independently.

What does the Decision mean for the Métis Nation-Saskatchewan (“MN-S”)?

Saskatchewan will be impacted largely the same as every province or territory in the country. The federal government has recognized the MN-S as the Indigenous Governing Body (“IGB”) for the purposes of the Act for Saskatchewan. MN-S and its citizens will determine what their child welfare law, governance structure, policy and service systems will be – including how they will be developed and implemented. This includes what the pace, scope, and implementation of services will be over time.

In sum, the Decision will assist in providing agency to Indigenous, Inuit, and Métis people to control Child and Family Services for their communities. For Saskatchewan, MN-S assumes jurisdiction over their registered citizens and may seek to expand their role into other areas of justice in the future.

Contacting a Lawyer on this Subject

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

 

About the Author

Kristian St. Onge is a Student at Law at Robertson Stromberg LLP. He received his Juris Doctor in 2023 and holds a Bachelor of Commerce degree in Finance with distinction from Edward’s School of Business at the University of Saskatchewan.

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