Des règles de dévolution légale en droit québécois : perspectives socio-historiques des affections présumées, pour une reconnaissance de la vocation successorale ab intestat du conjoint de fait survivant

Over time, inheritance law has favoured a certain conception of the family, notably the family as defined through marriage and the presence of descendants. While in recent years the possibility of a reform of family law has been discussed, it will also inevitably be necessary to question, and even adapt, the law of successions. This thesis is in line with recent developments in family law that stand out from the Eric v. Lola case and the Roy Report tabled by the Comité consultatif sur le droit de la famille in June 2015. In this regard, this thesis is focused on the rules of legal devolution under Quebec law -- it assesses the foundation of “presumed affections” from a socio-historical and constructivist approach, and pays particular attention to the situation of the decedent’s family, including the surviving spouse. This thesis proposes a three-part hypothesis: firstly, that the foundation of intestacy rules rests on the concept of “presumed affections” (affections présumées); secondly, this foundation has existed over time, since the Custom of Paris was applied in New France; thirdly, this foundation justifies amendments to the rules of legal devolution in order to recognize the surviving de facto spouse as an heir. After fleshing out presumed affections under the old law, from the Custom of Paris to the Quebec Act of 1774, to the Civil Code of Lower Canada, to the Pérodeau Bill, this thesis goes on to examine the recommendations made by the Civil Code Revision Office, which sought to centre family and inheritance laws on the nuclear family. This thesis then discusses the amendments introduced by Bill 89, the Loi portant réforme au Code civil du Québec du droit des personnes, des successions et des biens and Bill 146, which highlights a partial incorporation of inheritance law into family and matrimonial law to the exclusion of de facto spouses. Finally, for the purposes of demonstration, this thesis focuses on the rules of legal devolution under Book III on “Successions” under the Civil Code of Québec, from the presentation of Bill 125 to its coming into force in 1994, and concludes with an analysis of Bill 84, which in 2002 created a new heir: the civil union spouse. Ultimately, this thesis demonstrates that since the application of the Custom of Paris, the rules of intestacy have been based on presumed affections, the colour of which has varied over time. It also refutes the recommendation contained in the Roy Report supporting the status quo with respect to the non-recognition of common-law partners as heirs. On the contrary, the affections that the decedent was presumed to have – the “presumed affections” – justify reforming current legal devolution rules in order to recognize the surviving de facto spouse as an heir. While presumed affections are at the core of the rules of legal devolution, it must nonetheless be recognized that they may have been overshadowed by other elements, including the intent to protect the decedent’s nuclear family and the institution of marriage. Ultimately, 10 nuances emerge from the analysis and qualify the first part of the hypothesis identified above. This leads to the conclusion that the surviving spouse’s inheritance rights in the predeceased’s estate rest primarily on the existence of a lawful union regardless of presumed affections, the major term of the syllogism.

Keyphrases: famille, affections présumées, inheritance law, successions, foundation(s), presumed affections, legal devolution, intestacy, heir(s), heirship, surviving spouse, de facto spouse, common-law partner