My husband wants to make a will
My husband wants to make a will
"I've been living separate and apart from my husband, with whom I've had four children, for about ten years. I've recently returned to live with my husband, and I'm wondering about the possible inheritance consequences of legal separation if my husband dies.
Sylvana, Geneva
First and foremost, a distinction should be made between judicial legal separation and de facto separation, the latter essentially consisting of one of the spouses leaving the marital home before a judge has intervened and entailing no legal consequences. Legal separation is similar to divorce in some of its effects, but must be distinguished from it. While legal separation is similar to divorce in that the spouses' cohabitation is suspended by court order, it does not dissolve the marriage bond; the spouses remain married but live separately. It also entails separation of property by operation of law, and the power to represent the conjugal union disappears. However, unlike the effects of divorce, legally separated spouses retain the name acquired through marriage, continue to enjoy social benefits such as the right to a widow's or widower's pension, and continue to be subject to an obligation of fidelity and assistance towards each other, as well as a duty of mutual maintenance. For this reason, any maintenance contribution due will be determined in accordance with the rules governing maintenance during the marriage, i.e. in application of the principle of solidarity between spouses. Lastly, the spouses remain each other's heirs.
In the event of the death of a married person, the judge will first proceed to liquidate the matrimonial property. However, if the separation as to property was pronounced at the same time as the separation from bed and board, your assets will already have been divided, subject to any assets acquired in joint ownership with your husband, which will then be divided between you and your spouse before the estate is settled. Your husband's share of any co-ownership will then form part of his estate. As the surviving spouse, you will be entitled to half of your husband's estate. The children will share the other half equally, unless a will or an inheritance agreement provides otherwise, in which case your legal reserve cannot be prejudiced, so you will still be entitled to a quarter of the estate.
This means that your inheritance rights are not minimised by legal separation, and you could claim half of your spouse's estate on his or her death.
