Should your saved assets ultimately benefit your descendants? Consider protective clauses.

Reasons for remarriage and cohabitation clauses

Will the surviving spouse remain single, or marry and have more children? Will he or she allow himself or herself to be taken advantage of or influcenced? Consider protective clauses such as remarriage clauses and cohabitation clauses in estate planning! This is because a statutory remarriage clause is provided for in the case of usufruct (cf. Art. 474 para 3 sentence 1 revised Swiss Civil Code), but not in the case of (total) surplus allocation under a marriage contract.

Decease of the first spouse

In the event of the death of the first spouse, a married couple with joint descendants can leave most of the assets to the surviving spouse. Ideally, in the event of the latter’s death (so-called second death), the joint descendants will benefit from all the assets still available. There are doubts as to whether these legal consequences will occur.

Death of the surviving (second) spouse

Many years can pass between the death of the first spouse and the second. During this time, one spouse may remarry, have children, or become demented and in need of care.

Trigger events, protection of one’s own descendants

There is often a need to grant benefits to descendants when certain events occur (so-called reversionary or protective clauses), such as remarriage, cohabitation, birth of another child, admission to a nursing home, dementia or even moving abroad.

Remarriage

The objective is to protect one’s own descendants. The surviving spouse may, for example, enjoy the inherited assets until remarriage. From this point on, the estate could fall into the hands of third parties and the benefits of the joint descendants could be reduced. In the event of a second death, descendants might have to share the assets that both parents earned together with a new spouse. They often have no relationship with this new spouse. Tensions are inevitable.

Concubinage

If the surviving spouse moves in with someone, assets are commingled. Joint purchases are made. Often, one partner pays for the living expenses. This considerably reduces the benefits of the descendants in the event of the second death.

More children

Is it necessary to protect your current descendants from new heirs who are entitled to a compulsory portion? Or should you accept a reduction in the inheritance rights? What is your position on this? If a new descendant is born from another relationship later, he or she is entitled to inherit and is protected by the compulsory portion. In the case of intestate succession, he or she has equal rights and is entitled to the same share of the inheritance (cf. Art. 457 para 2 Swiss Civil Code). Even if a will exists, the additional descendant receives at least the compulsory portion.

Move to a nursing home and/or dementia

Nursing home and dementia clauses are intended to prevent asset depletion. However, it is uncertain whether they are legally valid.

Assessment of interests

Note the legitimate interests of the surviving spouse and the descendants. Weigh them against each other. Would you like the surviving spouse to be able to continue his or her standard of living without suffering financial hardship? Which events should trigger benefits for descendants? How are these to be settled? Get advice.