Separation of property in the event of death

Separation of property in the event of death

"In your article published on 14 March, you discuss separation as to property and, in particular, the consequences of this matrimonial regime in the event of divorce, but what happens in the event of death?

Gilbert S.

When spouses subject to the matrimonial regime of separation as to property divorce, each retains his or her property without there being any need to proceed with the liquidation of this matrimonial regime.

The same applies in the event of the death of one of the spouses, since each spouse remains the owner of his or her property, so that it constitutes the entire estate of the deceased. The estate will therefore be divided directly between the surviving spouse and the other heirs, in accordance with the rules of inheritance law.

In the case of separation as to property, the surviving spouse may thus be disadvantaged by the absence of liquidation of the matrimonial property regime, particularly where there is a disparity between the spouses' incomes. For example, if the wife was unable to save from her work during the marriage while the husband saved CHF 200,000, in the absence of a liquidation of the matrimonial property regime and therefore of a division of the benefits of the marriage, the wife will not be entitled to half of the assets acquired by her husband during the marriage and the CHF 200,000 will go directly into the estate.

That said, the surviving spouse remains well protected in Switzerland in terms of inheritance, since he or she is the legal heir of the deceased. In our example, if the couple has children, half of the estate of CHF 200,000 will go to the wife and the other half will be divided between the children.

If this couple had opted for the regime of participation in acquests, the situation would have been different: on the husband's death, the liquidation of the matrimonial property regime would have entitled the wife to half of the acquests acquired during the marriage, with only the other half being included in the estate. Thus, assuming that the husband had no assets of his own, his widow would have received the full amount of CHF 150,000, whereas under the regime of separation as to property she is only entitled to CHF 100,000.

Although separation as to property can offer a number of advantages, including greater protection for family assets in the event of one of the spouses becoming self-employed, it also represents a risk in the event of divorce or death for the non-working spouse, who is unable to save. In the event of inheritance, however, these effects can be mitigated by drawing up an appropriate will.