Favouring the surviving spouse

When one parent dies, the children are usually entitled to a share of the estate. However, if this is not applicable, the surviving spouse can be favoured to the maximum or granted a usufruct.

What are the legal provisions?

The division of marital property always takes place before the division of inheritance property. In marital property law, there are different masses – the property acquired during the marriage and the individual property of each spouse (cf. also acquired or individual property?). The individual property of the surviving spouse naturally remains his or her property. The individual property of the deceased spouse passes to the estate. The surviving spouse is entitled to one half of the acquired property, the other half comprises the estate assets.
In the inheritance property division, half of the deceased spouse’s share in acquired property and his or her individual property are distributed (cf. also: the estate of married testators). Especially in the case of home ownership, buying out the other heirs can become problematic for the surviving spouse.

Favouring the spouse to the maximum

One option of favouring the spouse is the so-called surplus. The legally stipulated share in half of the surplus (the remaining assets exceeding the liabilities of the acquired property of each spouse) in the division of marital property can be modified. The Swiss Civil Code gives spouses the option of assigning the entire surplus to the other. However, statutory entitlements of non-common descendants have to be respected.

Through an officially notarised marital agreement, a spouse can favour his or her spouse to the maximum. In addition, children can only be given their statutory entitlement in a will, allowing even more parts of the estate to be allocated to the surviving spouse. The surviving spouse would thus receive all of the deceased spouse’s acquired property and five-eighths of the latter’s individual property.

Usufruct

Another option of favouring the spouse is granting a usufruct. In the contract of succession, the surviving spouse may be granted a usufruct to three quarters of the estate assets. The surviving spouse may also be assigned ownership of the remaining quarter. Thus, the surviving spouse has the entire marital property at his or her disposal for use, giving him or her some further protection. The “actual heirs” are left with the “naked property” and they can only fully dispose of the usufruct items after the death of the second spouse. In this respect, there is also an obligation for the surviving spouse to conserve the value.

You can obtain detailed advice on this topic from specialist lawyers, addresses of which can be found in the DeinAdieu service provider directory.

Some things to consider:

  • How is the surviving spouse’s estate divided up into acquired and individual property?
  • Is it sensible to bequeath my children something in their current situation?
  • Do I want to entirely favour my spouse?
  • If yes, which option would be better?

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