Quick Summary
- Unmarried partners have no legal right to inherit. This means that they can be forced out of the home after the death of their partner. This can only be prevented by making express provision for the right of residence in the will.
- Married spouses can demand a right of residence by law in the event of their spouse’s death, even without a testamentary disposition (Art. 219 ZGB). However, this can be excluded by means of a marriage contract during the spouses’ lifetime.
- A right of residence must be clearly formulated in the will and only becomes legally effective when it is entered in the land register.
- The compulsory portions of other heirs must be taken into account – the right of residence is offset against their share of the inheritance
What is a right of residence?
The right of residence is governed by Article 776 para. 1 of the Swiss Civil Code (ZGB). It consists of the right to live in a building or part of a building. There are various forms of right of abode. In principle, the right of residence can be granted to one person alone (exclusive right of residence) or it can be exercised together with other persons, such as the owner (right of joint use).
As the right of residence is a highly personal right, it is neither transferable nor inheritable. In contrast to usufruct, the person entitled to the right of residence may not rent out the rooms. However, if the right of residence is not expressly limited to the entitled person, he or she can still take family members and household members into the apartment (Art. 777 para. 2 ZGB).
The right of residence can be established during the owner’s lifetime by means of a contract. The contract must be publicly notarized. However, it can also be stipulated in a will. In both cases, however, the right of residence is created by entry in the land register.
Legal basis for securing the housing situation of life partners
Married couples
Married spouses have a privileged legal position when it comes to residential rights. If one spouse dies, the surviving party can demand that they continue to receive a right of residence or usufruct for the apartment or house. This is to ensure that the surviving party can maintain their previous lifestyle.
The prerequisite is that the spouses lived together in this apartment or house and that this residence was owned by the deceased spouse. In addition, the surviving party must actively assert this claim against the community of heirs.
Unmarried couples (cohabiting)
The law does not provide for an automatic right of residence for unmarried partners. If your partner dies, you are not one of the legal heirs. This means that you do not automatically inherit the deceased partner’s assets. This can have considerable consequences with regard to the housing situation: If the joint residence was owned by the deceased partner, the surviving partner can be forced out of the home without a will.
Example: Larissa and her partner Marc have been living together in Larissa’s apartment for seven years. As they are both still very young, neither Marc nor Larissa have bothered to draw up a will. However, when Larissa dies unexpectedly one day, the legal succession takes effect. Since Marc, as a cohabiting partner, is not part of the intestate succession, he has to move out of the apartment.
Observe compulsory portions and legal limits
When granting a right of residence, the compulsory portion claims must always be taken into account. A right of residence has a value that must be credited to the beneficiary. It does not matter whether the beneficiary is protected by a compulsory portion or not.
The new inheritance law has been in force since the beginning of 2023, and with it new compulsory portions. The following article explains what has changed with the new inheritance law and what you need to pay particular attention to with regard to the right to a compulsory portion: The revision of inheritance law and its significance for estate planning.