The Legal position of
the surviving spouse in the inheritance law
It is no exaggeration to say that the legislature has made the protection of the surviving spouse central to the law. The surviving spouse has very strong rights, even if he or she is completely disinherited and was married to the testator outside community of property. And the bulk of those rules may not be deviated from by will, in legal jargon we then speak of mandatory law.
It starts with the fact that, when no will has been drawn up, and the testator is married (and not separated from bed and board at the time of death; which, by the way, is something else than living apart) and has children (regardless of the age of the children and also regardless of whether they were born from the testator's marriage to the spouse), the legitimate division applies. I have already written a separate post about that. It means that the entire estate goes to the surviving spouse and the testator's children receive a claim in the amount of their inheritance share from the surviving spouse. To boot, they cannot turn that claim into cash for the time being: the claim is only payable upon the death, bankruptcy or debt restructuring of the surviving spouse. The testator can extend the grounds of claimability to a certain extent: for example, admission to a nursing home or when the surviving spouse marries a new partner in community of property. But then a will comes into play.
So during the rest of his or her life, the surviving spouse can live on undisturbed and the entire estate is at his or her disposal. After all, that estate belongs to him; there is nothing to divide: the law has already divided, namely everything to the surviving spouse. The latter, by the way, must neatly pay the debts of the estate and also the inheritance tax assessments that fall on the children's doormat.
Sometimes you hear children sulk: "can she spend it all then?" The answer is actually quite simple: yes she may, because it is his or her money. This choice by the legislator finds its justification in the fact that the surviving spouse is often already elderly and no longer able to acquire income and assets. This is often true for the children, who are younger. In short, the legal distribution is actually the safe harbor for the surviving spouse.
Now suppose we are dealing with Albert who was married to Bertha but did not have any children with her. However, he had a mistress, Claire, and even had two children with her. Bertha did not have the slightest suspicion. Let's say that the children Albert had with Claire are of age. They don't know that Albert is their father; mother fobbed them off with an excuse. Albert dies. Shortly thereafter, the children discover that their mother was Albert's mistress and that he is their presumed father. They can have that established and let's assume that it is then established that Albert is indeed their father. Bertha is in all states. We are now going to describe two situations, one with a will and one without.
Without a will: the legitimate distribution applies. After all, Albert is married to Bertha at the time of his death and he has children. Thus, the criteria are met. The heirs are then Bertha and the children, but Bertha receives the entire estate. She can continue to live in the house; nothing actually changes. The children receive a claim against Bertha that is not due and payable. She has to unexpectedly pay the inheritance tax assessments the children receive; in addition, the remaining debts.
But now with a very annoying will: Albert stipulates in the will that this legitimate division does not apply. In addition, he appoints Claire and the children as heirs. Now the cards are suddenly very different for Bertha: if there were no further legal protection, she would literally be out on the street, without money (assuming she has no money of her own). The legislature has established that this should not be possible. In order to protect persons like Bertha from this kind of situation, the legislator created the legal rights. In principle, Bertha can claim three legal rights.
1. Continued use of marital home. Even though the home belonged entirely to Albert in ownership, Bertha is entitled to the continued use of the home and contents for six months from the day of Albert's death.
2. Usufruct of home and contents. In addition, Bertha can claim usufruct of the home and its contents. Note that she must make this claim known to the heirs within six months of her death. If they do not agree, the cantonal court will have to decide on the matter. Bertha must file the claim with the court no later than one year and three months after the opening of Albert's estate, or she will forfeit her right. It will then be time-barred.
3. Custodial usufruct. This is actually the most far-reaching right. Bertha can demand that a usufruct be established for her on all or part of the estate, if necessary with the power of encumbrance, alienation and digestion. If this were granted, she is effectively in the same situation as in the case of statutory division, except that in the case of statutory division she is the owner and now merely a usufructuary. But at least she can get on with her life. Note that she must make this claim known to the heirs within one year of her death. Assuming that they do not agree, the subdistrict court will have to decide the matter. The cantonal judge has a fairly free hand in everything: he can determine that usufruct is established over only a portion of the estate, or that - for example - no right of alienation applies to the house. Bertha is the one who must prove that she needs the usufruct. This involves such things as her age, family composition, financial position and the like. Bertha must bring that claim to court no later than one year and three months after Albert's estate opens up, otherwise she forfeits her right. It is then time-barred.
Books have been written about this topic as well; this contribution is only an outline description. You have to determine from case to case what is or is not possible, the advice is really tailor-made. Feel free to call or email me.
It starts with the fact that, when no will has been drawn up, and the testator is married (and not separated from bed and board at the time of death; which, by the way, is something else than living apart) and has children (regardless of the age of the children and also regardless of whether they were born from the testator's marriage to the spouse), the legitimate division applies. I have already written a separate post about that. It means that the entire estate goes to the surviving spouse and the testator's children receive a claim in the amount of their inheritance share from the surviving spouse. To boot, they cannot turn that claim into cash for the time being: the claim is only payable upon the death, bankruptcy or debt restructuring of the surviving spouse. The testator can extend the grounds of claimability to a certain extent: for example, admission to a nursing home or when the surviving spouse marries a new partner in community of property. But then a will comes into play.
So during the rest of his or her life, the surviving spouse can live on undisturbed and the entire estate is at his or her disposal. After all, that estate belongs to him; there is nothing to divide: the law has already divided, namely everything to the surviving spouse. The latter, by the way, must neatly pay the debts of the estate and also the inheritance tax assessments that fall on the children's doormat.
Sometimes you hear children sulk: "can she spend it all then?" The answer is actually quite simple: yes she may, because it is his or her money. This choice by the legislator finds its justification in the fact that the surviving spouse is often already elderly and no longer able to acquire income and assets. This is often true for the children, who are younger. In short, the legal distribution is actually the safe harbor for the surviving spouse.
Now suppose we are dealing with Albert who was married to Bertha but did not have any children with her. However, he had a mistress, Claire, and even had two children with her. Bertha did not have the slightest suspicion. Let's say that the children Albert had with Claire are of age. They don't know that Albert is their father; mother fobbed them off with an excuse. Albert dies. Shortly thereafter, the children discover that their mother was Albert's mistress and that he is their presumed father. They can have that established and let's assume that it is then established that Albert is indeed their father. Bertha is in all states. We are now going to describe two situations, one with a will and one without.
Without a will: the legitimate distribution applies. After all, Albert is married to Bertha at the time of his death and he has children. Thus, the criteria are met. The heirs are then Bertha and the children, but Bertha receives the entire estate. She can continue to live in the house; nothing actually changes. The children receive a claim against Bertha that is not due and payable. She has to unexpectedly pay the inheritance tax assessments the children receive; in addition, the remaining debts.
But now with a very annoying will: Albert stipulates in the will that this legitimate division does not apply. In addition, he appoints Claire and the children as heirs. Now the cards are suddenly very different for Bertha: if there were no further legal protection, she would literally be out on the street, without money (assuming she has no money of her own). The legislature has established that this should not be possible. In order to protect persons like Bertha from this kind of situation, the legislator created the legal rights. In principle, Bertha can claim three legal rights.
1. Continued use of marital home. Even though the home belonged entirely to Albert in ownership, Bertha is entitled to the continued use of the home and contents for six months from the day of Albert's death.
2. Usufruct of home and contents. In addition, Bertha can claim usufruct of the home and its contents. Note that she must make this claim known to the heirs within six months of her death. If they do not agree, the cantonal court will have to decide on the matter. Bertha must file the claim with the court no later than one year and three months after the opening of Albert's estate, or she will forfeit her right. It will then be time-barred.
3. Custodial usufruct. This is actually the most far-reaching right. Bertha can demand that a usufruct be established for her on all or part of the estate, if necessary with the power of encumbrance, alienation and digestion. If this were granted, she is effectively in the same situation as in the case of statutory division, except that in the case of statutory division she is the owner and now merely a usufructuary. But at least she can get on with her life. Note that she must make this claim known to the heirs within one year of her death. Assuming that they do not agree, the subdistrict court will have to decide the matter. The cantonal judge has a fairly free hand in everything: he can determine that usufruct is established over only a portion of the estate, or that - for example - no right of alienation applies to the house. Bertha is the one who must prove that she needs the usufruct. This involves such things as her age, family composition, financial position and the like. Bertha must bring that claim to court no later than one year and three months after Albert's estate opens up, otherwise she forfeits her right. It is then time-barred.
Books have been written about this topic as well; this contribution is only an outline description. You have to determine from case to case what is or is not possible, the advice is really tailor-made. Feel free to call or email me.