Succession of a married person: who gets what?
Matrimonial regimes are liquidated on three occasions: divorce, modification of the matrimonial regime and death. Regarding the latter case, many are not aware that the spouses’ matrimonial regime is liquidated before proceeding with succession which has a significant impact on the assets entering the deceased’s estate.
Acquired vs. Individual property
Swiss law distinguishes between ‘acquired property’ (acquêts; Errungenschaft) and ‘individual/personal property’ (biens propres; Eigengut). Acquired property are assets acquired during the marriage for valuable consideration, such as salaries. Personal assets include those accumulated before the marriage or inherited (before or during marriage).
Implication of the matrimonial regime on the succession
If the deceased was married, and depending on the applicable matrimonial regime, his/her spouse will receive (i) part of the assets in the context of the liquidation of the matrimonial regime, and (ii) part of the assets in the succession.
Acquired property regime (participation aux acquêts; Errungenschaftsbeteiligung): this is the de facto regime for spouses domiciled in Switzerland. Upon divorce or death, the assets acquired during the marriage are shared in half.
By entering into a marriage contract, spouses can choose to adopt one of two other available matrimonial regimes: community of property or separation of property.
A marriage contract can be entered into before or after the marriage was celebrated, effectively at any time (but within the limits of the law). A matrimonial property agreement must be made in the form of a deed.
Community of property regime (communauté de biens; Gütergemeinschaft): in the event of a divorce or death, spouses share all their property, whether personal or acquired during their marriage. In practice, this regime is fairly uncommon – less than 1% of couples are married under this regime.
Separation of property regime (séparation de biens; Gütertrennung): each spouse keeps his/her property separate, i.e. retains ownership, management and use of his/her own assets. In the event of divorce or death, each spouse takes back his/her assets.
The matrimonial regime chosen by the parties therefore has a significant impact on the assets entering the estate.
As a general rule: if the community of property regime greatly favours the surviving spouse, the separation of property regime favours the deceased’s other heirs (such as his/her children).
By way of example: A and B were married and had two common children. A dies. Assume that A did not make any testamentary dispositions, and half the estate is left to the surviving spouse B. See graphics for the implications in the three different matrimonial regimes here.
Acquired property regime
Community of property regime
Separation of property regime