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.

Related News and Articles

Can I Keep My Engagement Ring?

Upon the breakdown of a marriage, there are defined laws addressing how marital property is to be divided. But what happens if an engagement doesn’t result in marriage? And who gets to keep the engagement ring? Each province addresses ring ownership upon the breakdown...

read more

Binding Pre-Trial Conferences: What You Need to Know

Binding pre-trial conferences are a relatively new process option in Saskatchewan, which are available in civil law matters, including family law. Given that there have been few conducted in Saskatchewan to date, there are few decisions from the Court discussing your...

read more

Enforcement of Cross-Default Clauses

It is common in Saskatchewan that a farmer will go to the same financer for more than one loan facility. In many cases, the typical situation plays out as follows: The farmer, getting started or acquiring land from a parent, requires a mortgage to purchase the land....

read more

Students Join Tiffany Paulsen and Marinko Jelovic at USask Career Forum

willemien-kruger-lawyer-robertson-stromberg
willemien-kruger-lawyer-robertson-stromberg

University of Saskatchewan law students are invited to join Tiffany Paulsen and Marinko Jelovic at the USask Career Forum. Tiffany and Marinko will be discussing their careers at a session titled Life as a Litigator vs. Life as a Solicitor. The presentation takes place on January 13, 2024, at 9:40 am.

For more information and to register, click here.

Related News and Articles

Tiffany M Paulsen receives Q.Arb designation

Congratulations to Tiffany M. Paulsen, Q.C., on achieving Q.Arb designation from the ADR Institute of Canada (ADRIC). ADRIC is Canada's preeminent self-regulatory professional Dispute Resolution organization. It provides education and certification, promotes ethical...

read more

Retroactive Child Support: Should you be Worried?

The recent Supreme Court of Canada decision, Michel v Graydon, 2020 SCC 24  is likely going to cause late night anxiety for some parents as the Court determined that, no matter how old the “children” are, parents may still collect unpaid child support from the other...

read more

COVID-19: Why now is not the time to put your life on hold

It feels as though life is on hold these days.  People’s careers have been paused.  Kids are home from school.  Our social lives have become considerably more restricted.  We have all been forced to become homebodies, even if we (secretly) don’t mind it.  However, now...

read more

Force Majeure Doctrine of Frustration – COVID-19

Introduction The novel coronavirus (COVID-19) continues to impact the lives of millions of Canadians and millions more around the world. Governments and communities worldwide have responded to this global health emergency by restricting travel and large public...

read more

Robertson Stromberg Well-Represented as Best Lawyers

Best Lawyers™ recognizes extraordinary lawyers in private practice through an exhaustive peer-review process. Today, Best Lawyers™, published the 14th Edition of The Best Lawyers in Canada and we are pleased to announce that twelve lawyers from the firm have been...

read more

Tiffany Paulsen Awarded CBA Distinguished Service Award

We are pleased to announce that Tiffany Paulsen, Q.C. has been awarded the Canadian Bar Association Distinguished Service Award for 2019. The Distinguished Service Award recognizes contributions and/or achievements by members of the Saskatchewan Branch to the legal...

read more

Marinko Jelovic Presents at Canadian Bar Association (Sask) Mid-Winter Meeting

Join Marinko Jelovic at the CBA (Sask) Mid-Winter Meeting

Marinko Jelovic will be presenting at the Canadian Bar Association (Sask)’s Mid-Winter Meeting on January 25, 2024. As part of a panel entitled “Practice Management: How to Build and Maintain an Effective Corporate and Commercial Practice,” Marinko will be sharing his experience and insights on building a successful career in corporate and commercial law.

 

2024 Mid-Winter Meeting

Delta Regina | Regina, SK
 
To register, click here.

Related News and Articles

No Results Found

The page you requested could not be found. Try refining your search, or use the navigation above to locate the post.

James Steele Presents at Canadian Bar Association (Sask) Mid-Winter Meeting

Join James Steele at the Canadian Bar Association (Saskatchewan)’s Mid Winter Meeting in Regina on January 25, 2024. James will be addressing amendments to Part 16 of the King’s Bench Rules and their implication on estate administration.

 

2024 Mid-Winter Meeting

Delta Regina | Regina, SK
 
To register, click here.

Related News and Articles

Robertson Stromberg LLP listed as one of Canada’s Best Law Firms of 2024 by the Globe and Mail

Robertson Stromberg LLP has been listed as one of Canada’s Best Law Firms of 2024 by the Globe and Mail. The award list is based on over 10,000 recommendations collected from peers and clients. The final list recognizes only 200 firms in 31 different fields of law. The top law firms for each legal field were identified based on the number of recommendations they received from our survey participants.

Almost 25,000 lawyers, as well as in-house lawyers and legal executives working in legal departments of a company across Canada, were actively invited to take part in the survey, and Statista recorded more than 10,000 recommendations for law firms in the different fields of law.

Robertson Stromberg’s areas of distinction include Construction, Dispute Resolution (Litigation, Arbitration & Investigations), Restructuring & Insolvency.

To see the full listing of the Best Law Firms in Canada, click here.

Related News and Articles

Clavelle Successfully Advocates for Developer

On January 3, 2023, the Development Appeals Board for Saskatoon allowed an appeal brought by Curtis Clavelle of Robertson Stromberg LLP on behalf of Arbutus Properties Ltd. to lift a holding symbol with respect to land Arbutus wished to develop in Saskatoon. The...

read more

Area of Expertise