Matrimonial property law offers the possibility of regulating the estate in a way that is advantageous for the spouse. In the case of family-run SMEs, it is important to prevent the company from being split up by settling the property law.
The inheritance begins after the property settlement has been completed. In this case, the surviving spouse "inherits" for the first time, so to speak, before the other heirs come into the inheritance. The deceased spouse's assets are separated after the property settlement form the estate. The spouse and minor children may be entitled to benefits from the three pillars of provision. If there is no testamentary disposition, surviving spouses or registered partners receive half of the estate if they have to share with the heir's descendants. If there are no descendants and they have to share with the heirs of the parental line (parents-in-law, brother-in-law/sister-in-law), the share of the inheritance increases to ¾, and if there are no heirs of the parental line, to the entire estate. The statutory share of a spouse or registered partner is half of the statutory share of the inheritance.
Three matrimonial property regimes are possible:
The last two property regimes arise through agreement in a notarized marriage contract.
By entering into an inheritance contract, spouses can ensure stability.
Achievement sharing:
The law provides for the property regime of participation in acquired property as a rule for a married couple. The assets brought in at the time of marriage are personal property. Each spouse manages and disposes of his or her assets freely during the marriage. Anything that a spouse acquires for a fee during the marriage is his or her acquired property. Personal property also includes items that are exclusively for personal use, gifts, replacement purchases of personal property, compensation or acquisitions through inheritance.
A notarized marriage contract can prevent the SMEs belonging to a spouse from being burdened or split up. Assets that are intended for the exercise of a profession or for the operation of a business, i.e. assets that are part of the acquired property and would therefore be divided, particularly when setting up an SME during the marriage, can be declared to be the spouse's own property. With regard to inheritance or divorce, it can also be agreed that income from the own property does not count as acquired property. The options for agreeing on separation of property or a limited community of property are discussed below.
On the other hand, a notarized marriage contract regarding the participation in the proposal (acquisitions of both spouses less debts and certain claims for compensation) can be used to agree on a participation in the proposal other than half, the so-called most favored nation . This can give the surviving spouse a significant financial advantage, since the half proposal does not fall into the estate and is not included in the calculation of the statutory shares. Only the statutory share claims of the non-common children and their descendants must not be affected.
Through a notarized inheritance contract or will, the spouses may assign each other the freely available quota or even a usufruct right to the entire estate.
Community of properties:
In the case of community of property, a common property is formed from the assets and income of the spouses, in addition to which there is statutory separate property, formed from donations from third parties, items intended exclusively for personal use and claims for compensation. If there are different assets, this favors the spouse who brings little or no assets into the marriage in the event of inheritance. Income from separate property is included in the common property. In the case of a spouse's SME, a limited community of property can be agreed with the SME being separated into the separate property. As a variant, the community of property can be limited to the acquired property, for example if a spouse "brings" an SME into the marriage. In the event of inheritance, each spouse or their heirs is entitled to half of the common property, although a different distribution may be agreed in the marriage contract, which may give preference to the surviving spouse but must not affect the statutory share claims of the descendants.
Separation of property:
If a separation of property is agreed or entered into by court order or law, each spouse uses and disposes of his or her own assets. If the separation of property regime is dissolved, no property settlement takes place and the respective assets become part of the estate in full. In certain situations, such as only one or two heirs, this is an advantage for the preservation of the deceased' SME.
Of course, this blog post cannot cover the extremely complex subject matter in full. Planning in terms of property and inheritance law is essential, especially when a company is involved. We offer you detailed personal advice and individual estate planning. You are welcome to contact our office at m@m-win.ch.
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