Most-favored heir: ensuring financial security for your spouse

No one likes to think about their partner dying. But sooner or later married couples should consider how to manage their estate .

In the case of married couples, the spouse takes first place in the statutory order of succession, as does a registered partner in the case of a registered partnership. If there are no children, however, the parents, the grandparents or their descendants also inherit. However, this group of persons is not entitled to a compulsory portion. As soon as a married couple has children, they are entitled to a portion of the estate. Descendants, as well as spouses and registered partners, are entitled to a so-called compulsory portion. It amounts to one-half of the share of inheritance. The descendants are therefore entitled to one-quarter of the estate. Only the so-called freely available portion can be distributed at your own discretion.

If you do not make arrangements, your surviving partner could face financial difficulties if you die because co-heirs – for example, children – must be paid out. A good solution for this is to appoint your partner as the most-favored heir . There are various options for this in estate planning.

One example: following the death of one of the spouses, the couple’s two children demand their share of the inheritance. The couple’s assets are largely tied up in the house they own and live in. As the surviving partner does not have sufficient liquid assets available, the house must be sold in order to pay out the children’s share of the inheritance.

Inheritance law contains provisions for every type of family situation. This statutory order of succession comes into effect if there is no valid will or inheritance contract, i.e., succession cannot be arbitrary.

The compulsory portions restrict the scope for free estate planning. Otherwise, the share of inheritance can be changed, heirs can be excluded and other persons can be appointed as heirs. The only way for heirs entitled to compulsory portions to legally waive this entitlement is by means of an inheritance contract.

Under marital property law, spouses also have the option of appointing each other as beneficiaries in a marriage contract. This reduces the size of the estate to be divided according to the rules of inheritance. Registered partners can use a property agreement to provide financial protection.

Spouses who have accumulated their assets during their marriage can achieve extensive financial security by drawing up a marriage contract and a last will.

Arrange for children to inherit the compulsory portion

The children’s claim to inheritance can be reduced to the compulsory portion in a will. This amounts to one-quarter of the inheritance in total. With a last will, the spouse is thus entitled to a total of three-quarters of the inheritance.

Agree on waiver of compulsory portions

The most-favored heir clause is easiest to enact if the other heirs agree to waive their inheritance in full upon the death of the first parent. They sign an inheritance contract to do this. In practice, however, this approach does not always prove to be the easiest, for example because not all those involved are willing to do it.

Assign the acquired property

Any couple who has not agreed otherwise by means of a marriage contract will automatically live together under the marital property regime of sharing acquired property after they are married.

Acquired property refers to all assets that the spouses acquire during the marriage, such as savings accumulated from employment income. If no other provisions are agreed, the surviving spouse will receive half of the total property in the event of the other spouse’s death. The other half and the deceased’s own property, i.e., personal items, assets brought into the marriage or gifts and inheritances received during the marriage, make up the estate.

With a marriage contract, however, the spouses can assign themselves all their acquired property, i.e., all the assets built up during the marriage, in the event of death. The surviving partner only needs to share the deceased’s own property with the other heirs. Depending on the composition of the marital property, the spouses may consider switching their marital property regime to that of community of property.

Switch to community of property regime

If one partner brings a large amount of personal property into the marriage, the couple should check whether it is worthwhile switching the marital property regime to that of community of property by drawing up a marriage contract. As a result, the majority of the spouses’ own property becomes joint marital property.

If a partner dies, the surviving spouse is automatically entitled to half of the joint marital property. In the marriage contract, you can even assign the entire joint marital property to the surviving partner – minus the compulsory portions for joint and non-joint descendants.

In the case of community of property, the surviving spouse does not have to prove what they originally brought into the marriage. This is an advantage because the assets of both partners merge over time, which makes it increasingly difficult to distinguish between them over the course of the marriage.

Agree usufruct

Surviving spouses will benefit significantly if they have been granted the right of usufruct for the statutory share of inheritance of the joint children. In this case, the surviving spouse receives half of the inheritance directly as property. They manage the other half on behalf of the children. As the beneficiary they are entitled to retain the resulting income – such as interest, rental income and dividends.

You can specify beneficiaries in a will, a marriage contract or an inheritance contract.

Each spouse draws up their own handwritten last will. Mutual wills, which both partners draw up jointly, are not permitted. The last will must be drawn up by you by hand and must clearly reflect your wishes. Certification by a notary is not necessary. A last will must include details of where and when it was drawn up, and your own signature. If you draw up your own will, you can revoke or change it at any time. However, there is also a form known as a public will, which requires the involvement of a public official and two witnesses.

By contrast, both spouses must sign a marriage contract and all of the parties involved must sign an inheritance contract (e.g., spouses without children / with children in the event the inheritance is waived upon the death of the first parent). These types of contract can therefore only be changed or revoked with the consent of the parties involved. Both types of contract will only become legally valid once they have been officially notarized. To do this, you need to involve a notary or another public official designated by the canton, in whose presence the parties declare their wishes and sign the contracts. Two witnesses are additionally required in the case of an inheritance contract.
An inheritance contract is particularly appropriate if your children are older and they are financially independent.

By thinking about your estate in good time, you can also protect your partner for the time after your death. The legal system offers a number of options under marital property and inheritance law to provide financial benefits to spouses in the event of death. Which of these options are suitable for you, depends on your individual family situation and circumstances. In any case, it’s advisable to contact a specialist and to involve those who will be affected, such as your partner, in the planning to avoid inheritance disputes.