Usufruct in inheritance law

>Usufruct is often used in connection with an inheritance, where it is only established after the death of the testator. This can be the case if the testator wishes to grant a specific person the right to use the estate or parts of it under the usufruct. The reason for such usufruct is often to protect the surviving partner.

Example: Let’s consider a married couple with several common heirs. In the event of the wife’s death, the inheritance, e.g., a house, would be divided between the husband and the heirs. In this case, one of the heirs could insist on receiving their share of the inheritance. This could result in the house having to be sold. If the wife wants to protect her husband and ensure that he can live in the shared house for as long as he wishes, she can establish a usufruct. In the event of her death, ownership of the house would pass to the respective heirs, but the husband would have the right to continue using the house through the usufruct.

In Switzerland, inheritance law is regulated by Part III of the Swiss Civil Code (CC). A general distinction is made between the statutory share and the disposable share. Persons who leave behind descendants and/or a spouse or registered partner must pay a certain portion of their inheritance – the statutory share – to these persons. The remaining assets – the disposable share – can be freely disposed of, for example, by means of a will. If the testator does not leave any of the above-mentioned persons, they can freely dispose of their entire assets according to Article 470 of the CC.

According to Article 473, the testator has the option of granting the surviving partner the usufruct of the entire statutory share of the inheritance due to the descendants through a will or inheritance contract. This statutory share amounts to 50% of the estate. The remaining 50% of the estate is freely available and can be transferred to the surviving spouse or registered partner as property. If a usufruct is granted, this replaces the legal inheritance.

In short: The testator can leave half of the estate to the surviving partner for usufruct and the other half as their own property.

In the event of remarriage or the establishment of a new registered partnership by the surviving spouse or registered partner, their usufruct of the statutory share of the children is automatically terminated, who then receive full ownership without encumbrance.

Tip: If you are not married or in a registered partnership but still want to benefit your partner, you should definitely draw up a will or conclude an inheritance contract. This is because cohabiting partners do not enjoy the same legal protection and cannot assert any claims under matrimonial property law. In the event of death, they would therefore be left empty-handed, as they are not part of the intestate succession. The above statements on intestate succession therefore refer exclusively to marriage and registered partnerships.

A usufruct can generally be established in the same way as other inheritance matters relating to an estate. If you wish to establish a usufruct in favor of a specific person upon your death, you can draw up a will or enter into an inheritance contract.

With a will, you have the choice between a handwritten will and a public will. According to Article 505 of the Swiss Civil Code, you can write a handwritten will yourself. However, you must ensure that all formal requirements and legal provisions are observed. It is therefore advisable to consult a lawyer specializing in inheritance law. A public will, on the other hand, is drawn up in accordance with Article 499 of the Swiss Civil Code in the presence of a notary and two witnesses. This has the advantage that compliance with the law can be verified and you have the certainty that the will is valid. However, unlike a handwritten will, there is a fee involved. However, if you decide to establish the usufruct within the framework of an inheritance contract, you must have it publicly notarized, otherwise it can be contested.

In principle, according to Article 749 of the Swiss Civil Code, the usufruct expires upon the death of the beneficiary. It also expires upon remarriage or the establishment of a new registered partnership. For legal entities, i.e., companies, it is limited to a maximum of 100 years. Further reasons for the expiration of the usufruct are, according to Article 748 of the Swiss Civil Code:

• Complete loss of the usufructed property (in the case of an apartment, for example, this would be the deletion of the corresponding land register entry)
• Cessation of the reason for the usufruct
• Expiration of the period specified for the usufruct
• Waiver by the beneficiary

The usufructuary is obligated to treat the asset in question with care. This means that the asset may not be consumed or sold. As already mentioned, the beneficiary may keep the income (e.g. rental income from a house), but at the same time must pay the costs of maintenance and management as well as other taxes.