Should the surviving spouse continue to live in the house and be unable to sell it? What does the revised inheritance law provide for the usufruct (according to Article 473 Swiss Civil Code)?
Motive
Usufruct in favor of the spouse against joint children is like a tied up purse. The children as owners receive so-called naked property, of which they have nothing until the death of the second spouse.
The surviving spouse as usufructuary enjoys someone else’s property but cannot dispose of it. The surviving spouse is better off and is assured of remaining in the marital home. Often, this can help prevent the sale of a family home as a means of dividing the inheritance. The spouse then receives possession of (movable and/or immovable) assets of the estate. He or she may use, manage and exploit these assets and may occupy or rent out real estate. However, he or she is not allowed to sell them.
Formal requirement: Disposition upon death
You (as testator) may grant the surviving spuuse a usufruct by a testamentary disposition.
Death of the beneficiary surviving spouse
Upon the death of the surviving spouse or usufructuary, the usufruct ends by operation of law. The estate passes to the joint descendants.
Revised inheritance law
What new rules does the inheritance law revision now provide for?
According to the revised law, when the surviving spouse benefits from a usufruct, the available portion is adjusted to the reduced compulsory portions. In addition to this usufruct, the available portion amounts to half of the estate, compared to one quarter previously.
Registered partnerships with joint children will now also be entitled to usufruct solutions.
Two further issues are clarified in the report of the Swiss Federal Council: namely (1) the surviving spouse’s right to choose between usufruct and compulsory portion in full ownership and (2) the calculation method when there are joint as well as non-joint descendants.
If the surviving spouse or the surviving registered partner has been assigned by last will and testament exclusively the usufruct of the entire estate with respect to joint descendants (so-called usufructuary bequest), the surviving spouse or the surviving registered partner has the right to demand his or her compulsory share in full ownership instead of the usufruct.
In the case of joint and non-joint children, two different estates must be formed so that the heirs’ claims can be calculated.
Criteria
The usufructuary bequest is a way of providing for a beneficiary when most of the assets consists of the testator’s own property. The asset situation and the family situation must be analyzed in advance. The older the spouse or registered partner, the better. Usufruct solutions are unsuitable if the deceased also leaves non-joint descendants.
Usufruct solutions are “fair-weather solutions”, harbor potential for conflict within the family and are often perceived as a burden. Properties are encumbered with usufructuary rights to prevent their sale and to enable the surviving spouse to remain in the house.