Marital Fault as a Basis for Terminating Inheritance Rights
At the Law Society of Upper Canada’s 14th Annual Estates and Trusts Summit held on November 9, 2011, Ian Hull presented a paper, co-authored with Suzana Popovic-Montag, entitled “Terminating Inheritance Rights.”
Ian and Suzana’s paper discusses an interesting trend in the United States, where some courts and legislatures are willing to terminate or otherwise impose statutory limits on the inheritance rights of married spouses on the basis of “marital fault.”
The paper discusses a number of types of marital “faults" that can result in the termination of inheritance rights of spouses in some states in the United States, including the following:
- Murder: All states withhold inheritance from a surviving spouse who murders his or her spouse. While many variations exists among states regarding the type of killing required (e.g. murder, manslaughter, etc.), the necessity of a conviction, and the type of property for which inheritance rights are terminated, most states do agree that the killing must be intentional and egregious for disinheritance to result.
- Domestic Abuse: While a majority of states view domestic abuse as an egregious act of marital misconduct, only a minority of states bar a spouse from inheriting if a surviving spouse had abused the deceased spouse.
- Adultery: There are a few states that bar spousal inheritance on the basis of adultery. Indiana, interestingly, only bars an adulterous spouse from inheriting from a deceased spouse if the adultery persisted up until the deceased spouse’s death.
- Desertion or Abandonment: There are at least 15 states that specifically account for desertion or abandonment of a spouse either though statue or common law, and allow for the termination of inheritance rights.
In Ontario, it is well settled law that someone who has killed another, including a spouse, by a criminal act cannot inherit the other’s property, and is precluded from benefiting from a life insurance policy. Aside from this exception, the concept of “marital fault” does not have a role in estates law in Ontario. Just as we have a “no fault” divorce system, we similarly have “no fault” inheritance and succession. It will be interesting to see if the trend in some states in the United States toward “marital fault” as a basis of terminating inheritance rights will have any impact on Canadian jurisprudence in the years to come.
Thanks for reading,
Saman M. Jaffery
