Inheritance in community of property: legal situation and general information

Community of property is a marital property regime that governs the division of assets between spouses. Community of property is governed by Articles 221 et seq. of the Swiss Civil Code (CC).

Under community of property, spouses pool virtually all of their assets. The totality of the individual property and acquired property of both spouses thus becomes what is known as community property. This also applies to debts for which the spouses are liable with their joint property (Article 233 CC), with the exception of certain personal debts of one spouse (Article 234 CC).

To choose community of property as their marital property regime, the spouses must draw up a marriage contract. Without a marriage contract, the ordinary marital property regime, which applies to all Swiss spouses, applies: the participation of acquired property.

If one spouse dies, 50% of the joint property forms their estate. The surviving spouse inherits half of this estate based on the statutory succession. The other half goes to the deceased’s remaining legal heirs. In the event of a divorce, however, the rules for the division of property apply as for the participation of acquired property – the joint property is divided into separate property and acquired property (Articles 236 et seq. of the Swiss Civil Code).

What is the common property of the spouses?

In a community of property, spouses combine all their assets, but can, if they wish, retain certain assets that are excluded from the community of property. These assets are considered separate property and must be listed individually in a marriage contract (Article 225 of the Swiss Civil Code). The remaining portion of the marital property that has not been clearly declared as separate property constitutes the common property of the spouses in community of property. This property belongs to both spouses jointly, and according to Article 222, Paragraph 3 of the Swiss Civil Code, neither spouse can dispose of their share.

The effects of community property on the division of assets upon the death of a spouse cannot be generalized, as they depend on whether a will or an inheritance contract was drawn up.

Without a specific testamentary disposition, intestate succession takes place, and the following principle applies: The surviving spouse is entitled to half of the deceased’s estate (half of the marital joint property and, if applicable, the deceased’s personal property). The other half of the available estate is divided among the testator’s legal heirs.

Principle of Intestate Succession

Intestate succession in Switzerland recognizes three so-called parenteles of intestate heirs. These are groups of people who are directly related to the testator and who inherit in a specific order.

• 1st parentele: the direct descendants (Article 457 of the Swiss Civil Code)
• 2nd parentele: the testator’s parents and their other descendants (Article 458 of the Swiss Civil Code)
• 3rd parentele: the testator’s grandparents and their other descendants (Article 459 of the Swiss Civil Code)

The inheritance rights of the testator’s relatives end with the grandparents and their descendants, i.e., with the third parentele.

Community of Property and Intestate Succession

If the deceased did not leave a will, intestate succession determines who receives the estate. According to Article 462 of the Swiss Civil Code, surviving spouses or registered partners are taken into account and treated equally to the heirs of the first parentage. According to the rules of intestate succession, the surviving spouse or registered partner receives, in addition to the 50% of the estate already received, the following shares of the other half of the estate:

• in proportion to the heirs of the first parentage (descendants): 50%
• in proportion to the heirs of the second parentage (parents): 75%
• in proportion to the heirs of the third parentage (grandparents): 100%

Practical Example

For example, if a woman dies married in community of property and whose share of the marital assets amounts to CHF 100,000, her inheritance is divided as follows: If there is no will or inheritance contract, the surviving spouse receives 50% of the total assets, i.e. CHF 50,000. The other half (CHF 50,000) is generally passed on to other legal heirs according to the rules of intestate succession. In addition, the surviving spouse receives an additional 50%, i.e. CHF 25,000, of the estate assets from the child (heir of the first parent). The remaining CHF 25,000 is due to the child.

If there are multiple children, the CHF 25,000 is divided equally among the children. In this example, the spouse receives a total of CHF 75,000 of the available CHF 100,000, and CHF 25,000 goes to the children.

Community of Property and Will or Inheritance Contract

If the testator draws up a will or inheritance contract, the testator can determine what share of the estate the heirs should receive. Even in a community of property, the distribution of the estate is governed by the testator’s wishes and not by the rules of intestate succession. For example, the testator can stipulate that his or her surviving spouse should receive a larger share of the estate than his or her children. However, he or she must always consider the statutory shares to which certain legal heirs are still entitled.

According to Article 471 of the Swiss Civil Code, the statutory shares amount to 50% each for the spouse or registered partner and for the descendants.

Suppose a testator draws up a will for her assets of CHF 100,000. She stipulates that CHF 90,000 should go to her spouse and CHF 10,000 to her son. This disposition is not possible within the scope of the son’s statutory share, which amounts to 50% of the statutory entitlement. The testator’s son may not receive less than CHF 12,500.

Special Case: Waiver of Inheritance through a Will

It is possible for legal heirs to waive their statutory share. Such an arrangement can be made during the testator’s lifetime through a will. Typically, the heir receives a financial settlement. Such a waiver of inheritance agreement is particularly appropriate if, for example, the surviving spouse is to be financially secure in the event of death and therefore be considered for a larger share of the inheritance.

In addition to community of property, Switzerland recognizes two other property regimes. The ordinary property regime, as defined in Article 181 of the Swiss Civil Code, is the participation of acquired property. Under this property regime, spouses hold separate assets during the marriage and remain owners of their own property (Articles 196 et seq. of the Swiss Civil Code). Assets acquired during the marriage (acquired property) are also managed separately. Upon dissolution of the property regime, the assets acquired during the marriage are divided equally among the spouses.

In the case of separation of property, however, there is no “joint property” at any time, and each spouse remains the owner of their own property and their acquired property (Articles 247 et seq. of the Swiss Civil Code). Therefore, in the event of a divorce, the assets do not need to be divided. To agree to the separation of property, the spouses must conclude a notarized marriage contract.

Choosing a community of property regime has several property-related consequences that precede the question of inheritance. Regarding assets, the spouses’ assets immediately become part of the community of property and belong to the spouses indivisibly. The purchase or sale of securities or real estate therefore always requires the mutual consent of the spouses. This also applies to inheritances that accrue to one spouse.

The pooling of spouses’ assets also has important consequences with regard to debts. During legal proceedings, a spouse’s creditors can claim a portion of the joint assets. Finally, in the event of death, as already mentioned, the surviving spouse receives half of the available assets, i.e., half of the total assets, within the framework of the community of property regime.

Community property can therefore lead to a certain commingling of assets during the marriage, but it has the advantage that the surviving spouse benefits in the event of death. This property regime can also be chosen by couples who have entered into a registered partnership.

Tip: It is very important for spouses and civil partners to clearly regulate their financial affairs during and after the marriage. Attorneys specializing in inheritance law can provide you with expert advice on the effects of community of accrued gains on your inheritance and assist you in drafting a will or prenuptial agreement in accordance with applicable law.