In 2008, the victim’s spouse committed 15 per cent of the solved murders nationwide, according to Statistics Canada.
It’s a fairly safe bet that the inheritance rights of those perpetrators were terminated, but a Toronto estates lawyer says spouses shouldn’t have to commit the ultimate act of violence against their partner in order to get themselves barred from entitlement to an estate.
Ian Hull, co-founder of Hull & Hull LLP, told an audience at the Law Society of Upper Canada’s 14th annual Estates and Trusts Summit in November that some U.S. states are leading a move to expand the traditionally narrow circumstances in which marital misconduct comes into play in assessing a surviving spouse’s entitlement.
“I use the murder situation because it seems the most concrete and the public policy is straightforward that you can’t inherit if you murder your spouse, all rights of appeal are exhausted, and you’re going to have a tough time collecting on that inheritance,” said Hull.
“There are areas — for example, domestic abuse as a source of terminating inheritance rights — where I’m always troubled by the fact that it hasn’t got more traction here in Canada, but I think we’re going to start to see it.”
According to Hull, U.S. common law provides a general rule that no degree of misconduct would bar a surviving spouse from rights to the deceased spouse’s estate.
But some states have taken matters into their own hands by passing legislation that allows for the termination of inheritance rights for various acts of marital misconduct.
For example, in Virginia, the state has a law that governs the disqualification of inheritance in the case of a murder or voluntary manslaughter. A few other states have gone further by recognizing spousal abuse as a potential barrier to inheritance.
Another Statistics Canada report from 2005 found that 653,000 women and 546,000 men had been the victim of spousal violence of some sort with three quarters of them experiencing it during a marriage or common law union.
With such a high level of domestic abuse, Hull said it’s “shocking” from a public policy standpoint that Canadian jurisdictions haven’t followed suit with their own statutory barriers to inheritance for perpetrators of domestic abuse.
“The difficulty, of course, is that the tests are different throughout the states that are employing this around the need for conviction and whether or not the abuse is proved. That is where the soft and less clear elements are.
But it exists. It’s a starting point and it seems remarkable to me that the category hasn’t had any traction here. It’s a really meaningful and probably good reason to terminate inheritance rights of your spouse.”
But it’s not just domestic abuse and murder that can result in the termination of inheritance rights in some U.S. states.
Indiana is among a number of states where spouses can face disentitlement for adultery. In that state, the adultery must continue right up until the cheated spouse’s death.
In addition, at least 15 states, including Virginia, allow for the termination of inheritance rights in cases where the surviving spouse had deserted or abandoned the deceased.
According to Hull, the right of surviving spouses to inherit is entrenched in Ontario. “There is a heavy bias towards the married couples and towards long-term spousal relationships,” he said, noting the statutory protection offered under the provincial Family Law Act as well.
But it’s still worth experimenting in court to test the limits of the law, said Hull, who added that the area of termination of inheritance rights contains some “open doors” that make it amenable to novel approaches in litigation.
“You get into this area and you get the blinders on sometimes and you start to think only one way or within some box. . . . I want to go a little outside the safe zone.
In the U.S., there’s some good categories and it’s not something that’s completely outside the box and it is certainly gaining traction.”
Ontario, he added, might not go as far but could take some action.
“Maybe we don’t get as far as terminating inheritance rights through adultery or something, but we may get towards something like domestic abuse being an important element of termination.”