DIVORCE

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PENDING DIVORCE PROCEEDINGS AND INHERITANCE LAW

Divorce proceedings are pending. May your still-spouse nonetheless succeed you? What can you do to ensure that this will not be the case?

Time line

Imagine a timeline: You are in love, engaged, married, and eventually divorced.

Divorced spouses have no statutory rights of inheritance in relation to each other.

Shall your spouse still inherit your assets if you do not want to overcome the marital crisis and dissolve the marriage?

Avoidance of forced heirship

The new, revised law of succession applies from January 1, 2023, on:

After the demise of the testator during divorce proceedings, forced heirship of the surviving spouse may be avoided if the proceedings were instigated by joint request or continued by joint request in line with the rules on divorce; or the spoused have lived apart for a minimum of two (2) years (cf. Art. 472 par. 1 CC).

A loss of forced heirship means that the surviving spouse no longer qualifies as an heir entitled to a compulsory portion. However, the statutory hereditary right remains in force.

Holographic will

It is up to you to decide whether your spouse should receive nothing or less than foreseen by intestacy rules. If so, you must act: You may draw up a holographic will and deprive the other spouse of the right to the compulsory portion in the future.

Otherwise, the surviving spouse receives at least part of your estate (cf. Art. 462 CC).

Marriage and or inheritance contract

In addition, a possible marriage and or inheritance contract should be examined with a view to a future divorce.

Contact me for a consultation.