Legal provisions
Unless the spouses have agreed otherwise, they are subject to the ordinary matrimonial property regime of participation in acquired property. Under this regime, the assets of both spouses are divided into two categories: separate property and acquired property. Separate property includes assets that a spouse already owned before the marriage, as well as those that they received during the marriage through inheritance or gift. Acquired property, on the other hand, includes all assets acquired jointly during the marriage, such as income from gainful employment or income from separate property.
Upon the death of one spouse, the acquired property is first determined and divided equally: one half goes to the surviving spouse, and the other half, together with the separate property of the deceased spouse, goes into their estate. This is then divided among the heirs determined by law or contract.
The division of the estate depends on with whom the surviving spouse has to share the estate:
- With descendants: One half of the estate goes to the surviving spouse, the other half to the children.
- If there are no descendants, the estate is divided with the parental line (parents or their descendants): The surviving spouse receives ¾ of the estate, and the remainder goes to the parents of the deceased or, if they have predeceased them, to their descendants.
Deviations due to marriage or inheritance contracts
These legal provisions may be deviated from by means of a marriage contract. For example, the spouses may agree that in the event of death, the surviving spouse shall receive the entire estate instead of only half. In this case, only the deceased spouse’s separate property would fall into the estate.
In addition, the spouses can draw up an inheritance contract or a will to regulate the estate individually. In doing so, the right to a compulsory portion of certain heirs, in particular descendants, must be observed. If descendants are assigned the compulsory portion by will or inheritance contract, they are still legally entitled to ¼ of the estate instead of half.
Another way to protect the surviving spouse is to grant them the usufruct of the legal inheritance share of the joint children. In this case, the surviving spouse receives half of the estate, as in the legal regulation, at their free disposal. As the usufructuary, the surviving spouse has the right to administer and use the other half, but not to sell it.
Conclusion
The legal regulations allow for flexible estate planning that can be tailored to individual family and economic circumstances. Marriage and inheritance contracts offer a wide range of options for optimally protecting the surviving spouse and can be helpful, for example, if real estate is involved.
If you have any questions about estate planning or protecting your spouse, our notaries will be happy to advise you.