Married Couple, Single Recipient: Understanding the Exclusion of Gifts and Inheritances from Default Matrimonial Regimes

In most Canadian jurisdictions, default family property law regimes exclude gifts and inheritances from the property that will be divided between divorcing couples. In Quebec, this exclusion is not only present in the default regime (the partnership of acquests) but rendered mandatory by the public order nature of the “family patrimony”—a construct determining the property that will be shared equally between spouses upon their divorce. This article examines default regimes of family property in Ontario and Quebec and analyzes the justifications provided by the provincial legislators for excluding gifts and inheritances from the mass of assets that will be divided between the spouses. The article then traces the various ways in which gifts and inheritances, both within and outside the couple, have been restricted through Roman, civil, and common law, and finds that these restrictions are tied to a desire to maintain property within the spouses’ natal families. Finally, the article argues that the exclusion of gifts and inheritances points to a conception of the family tied not to marriage and choice, but to “family” understood as bloodlines, which is out of step with today’s contemporary values and betrays the portrait of marriage otherwise painted in family property legislation