That's History: Succession laws disadvantaging women have long history

This spring, Parliament passed the Succession to the Throne Act to provide that birth order alone, not gender, would henceforth govern succession to the Crown. In any event, the birth of Prince George means the issue won’t arise again for another generation. But the move to overturn the ancient law of primogeniture is a reminder of the importance of the law of succession despite its slow pace of change.

U.S. legal historian Lawrence Friedman has called the law of succession the “genetic code” of the social order, suggesting that any radical change in the law of inheritance would alter the social structure within two or three generations.

Primogeniture accompanied the settlers to British North America, but the Maritime provinces got rid of it as fast as they could. They all abolished it in favour of partible inheritance, although it came with a twist as the eldest son got a double share of the property of the deceased intestate parent. Why? Because the puritans of Massachusetts had done so, believing they were following a biblical injunction. New Englanders dominated the legislatures of the Maritime provinces in the early years and brought their legal culture with them. As a more democratic and egalitarian ethos emerged by Confederation, authorities quietly dropped the double share.

In Ontario, the abolition of primogeniture was a much bigger deal. The Constitution of 1791 had provided for a landed aristocracy after all. Even though an aristocratic political order didn’t develop as planned, primogeniture symbolized a deferential, hierarchical society in a way that appealed to the colonial elite. Eighteen bills to abolish primogeniture failed before the reform finally succeeded in 1851.

Even then, Ontario hung on to the fee tail, even as most other provinces abolished it, until 1956. That’s right — it was 1956, not 1856. The bill to abolish primogeniture applied only to fee simple estates. The fee tail continued to descend by the canons of primogeniture until its abolition, so those who really wanted to mimic the British aristocracy could still do so. Today, you can get a peek at that vanished world by watching Downton Abbey as poor Lord Grantham holds his estate in fee tail male. This means that none of his three lovely daughters can succeed to it. But if one of them married his male heir, the handsome young Matthew Crawley, it would be different. Who said succession law was boring?

The other big change over the years has been the rise of the spouse, especially the wife, in the law of intestate succession. Historically, inheritance was all about blood. Spouses weren’t blood relatives. As a result, they occupied a marginal place in the scheme of succession law. Wives got dower while men got curtesy through life estates in their late spouse’s realty. It was the children who needed the property to carry on the family line.

Dower did play an important role in protecting widows on farms, however. Nonetheless, as the population became more urban, dower applied to a smaller number of people. Thus, the legislature created the preferential share for childless widows in 1895. This was a set amount, initially $1,000, that the widow could take off the top of her deceased husband’s intestate estate and it applied to all assets, not just land. But the rest of the husband’s property went to his blood relatives, usually siblings.

Individuals still had complete testamentary freedom until the 1920s when dependants’ relief legislation came into play. It allowed the widow to apply to vary the will if the husband hadn’t left enough for her proper support. This law and the preferential share thus provided some important protections for less wealthy widows.

But it fell to the Succession Law Reform Act to cement the victory of the spouse over the surviving children and other relatives. Since 1977, if there are no children, the surviving spouse takes all of the deceased person’s property. Even if there are children, the preferential share is now a healthy $200,000 so that in a large proportion of intestacies, the surviving spouse will take all. The spouse shares the surplus with any surviving children.

The final frontier in this development is the position of the unmarried conjugal partner. In March 2013, British Columbia became the first province to provide intestate succession rights to common law spouses with whom the deceased cohabited for two years prior to death. They now have the same rights as formally married spouses, and if two or more “spouses” survive the deceased, judges will divide up the assets as they see fit.

Philip Girard is a legal historian and professor at Osgoode Hall Law School. He’s also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is [email protected].

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