Preference of the spouse
Elderly couples would often favor the other for old-age provsion. Young couples with offspring buying a house also want to benefit the other. This is possible, among other things, by means of a marriage contract surplus allocation. How is this treated under inheritance law?
Without marriage contract
For the surviving spouse, what he or she receives under matrimonial property law is often decisive. Without a prenuptial agreement, the spouses are in principle subject to the provisions on the community of accrued gains (participation in the acquired property). The law provides for one-half participation in the surplus.
Prenuptial or postnuptial agreement
A different participation in the surplus can be agreed by prenuptial or post-maritial agreement. For example, upon dissolution of the matrimonial property regime by death, the sum of both surpluses may be allocated to the surviving spouse (so-called survivorship clause, total surplus allocation or surplus allocation). Only the testator’s own personal property is included in the estate. Art. 216 of the Swiss Civil Code tolerates a special right of inheritance.
Under current law, the inheritance-law treatment of this property-law benefit under Art. 216 of the Swiss CC is disputed, as is its qualification as a legal transaction inter vivos or as a disposition upon death, the calculation of the compulsory portions, and the order of reduction.
At present, such agreements regarding an allocation of more than half of the surplus may not prejudice the rights to the compulsory portion of the non-joint children and their descendants (Art. 216 para. 2 CC). What applies vis-à-vis the other heirs of the compulsory portion, the joint children?
In this regard, opinions differ, and there is interpretation 1 as well as interpretation 2.
According to Interpretation 1, the surplus allocation is not considered when calculating the compulsory portions of the joint descendants. The compulsory portion mass is equivalent to the the testator’s personal property. Consequently, there are different compulsory portion computations for joint and non-joint descendants.
Interpretation 2, on the other hand, assumes a uniform compulsory portion calculation mass for all compulsory portion heirs since the surplus allocation above one-half must always be taken into account under inheritance law. However, joint children cannot reduce the preferential treatment under the marriage contract. To meet your compulsory portion, you are left with the personal property contained in the estate.
In consulting practice – especially in the German-speaking part of Switzerland – interpretation 1 predominated.
The new, revised inheritance law
The revised Inheritance Law now provides (in the final version) for the surplus allocation above one-half as defined in interpretation 1.
The participation in the surplus allocated above one-half shall not be added when calculating the compulsory portions of the surviving spouse or registered partner, the joint children and their descendants (Art. 216 para. 2 revised CC).
Such an agreement must not affect the rights to a compulsory portion of the non-joint children and their descendants (Art. 216 para. 3 revised CC).
The benefits from prenuptial agreements are considered as inter vivos benefits (cf. Art. 532 para. 2 cypher 1 revised CC).
Protection of joint children
The status of the surviving spouse is strengthened in the classic family model with joint children. The (testator’s) own property is included in the estate. Its value must be determined. This simplifies and accelerates the division of the estate. However, remarriage of the surviving spouse can have a negative impact on the joint descendants. This must be countered with contractual protection clauses.