Inheritance on divorce: this is the legal situation

Death and the inheritance associated with it are always a difficult matter. In connection with a divorce, the situation becomes even more emotional and complicated. In this blog, you will find out about inheritance regulations depending on when death occurs and who is entitled to what.

Inheritance can be a major challenge in the event of divorce, especially if a death occurs during the proceedings. First, the joint assets are divided to determine what counts as accrued property and what counts as individual property. Only then will it be clear what belongs to the estate and how the inheritance will be distributed. An early pension consultation ensures that you settle your inheritance and asset issues in good time and are protected in the worst scenario.

Inheritance and divorce: it depends when death occurs

Spouses have mutual rights and obligations during their marriage. Inheritance law is one of them.

Inheritance during marriage

Spouses have a mutual right to inherit. If the deceased person has not left a will, the legal order of succession under the Swiss Civil Code (SCC) applies. A spouse’s legal inheritance entitlement depends on whether they inherit solely or must share the inheritance with children or other family members. With a will, a spouse can be entitled to the compulsory portion. This means that they only receive the legally prescribed minimum share.

Inheritance pending divorce proceedings: what happens in the event of death?

While divorce proceedings are ongoing, surviving spouses do not have compulsory portion protection. They lose their entitlements under agreements such as wills, marriage and inheritance contracts. This means that spouses can exclude their partner from the line of succession during divorce proceedings. However, this must be explicitly defined in a will or inheritance contract. If the testator has not made any other provision, the spouse who is not yet divorced still receives the statutory share of the inheritance.

The blog “Compulsory portion for heirs: what applies in Switzerland” addresses further questions on the statutory shares of inheritance.

After divorce: inheritance law of divorced spouses

As soon as the divorce decree becomes legally binding, the spouses are divorced and no longer have mutual inheritance rights.

Spouse inherits: how is the inheritance divided in the event of divorce?

A common question many (soon to be) divorced spouses ask themselves is whether an inheritance they received from a deceased third party must be shared with their spouse in the event of a divorce. According to the law, the following rules apply:

Inheritance during marriage: influence of the property regime

If one of the spouses inherits during the marriage, the chosen property regime determines who owns the inheritance:

• Participation in accrued gains: the inheritance belongs to the owner’s personal property. They can decide what to do with it, including disposal. The same applies to a gift
• Community of property: the inheritance belongs to both spouses.
• Separation of property: the inheritance belongs to the person entitled to inherit. Only that person can decide what to do with it, including disposal.

Inheritance in divorce proceedings: asset division and rights

Before the divorce becomes legally binding, the spouses’ chosen property regime still determines who owns an inheritance and who can dispose of it. Once the divorce enters into force, any accrued inheritance will be divided as follows:

• Participation in accrued gains: the inheritance belongs to the beneficiary’s personal property and is not included in the proposed share of accrued gains.
• Community of property: although the spouses lived in a community of property during their marriage, an inheritance accrued during the marriage becomes individual property. Your spouse is no longer entitled to a part of the inheritance following divorce.
• Separation of property: the inheritance still belongs to the person entitled to inherit and is not divided in half in the event of divorce.

Inheritance after divorce enters into force: what applies to ex-partners?

If a divorced person inherits after the divorce has entered into force, the inheritance belongs solely to him or her. The divorced ex-partner has no entitlement.

Our tip: regularly review inheritance and pension planning

Make sure that your inheritance and pension planning is regularly reviewed and updated – especially in the event of life events such as divorce. If necessary, amend your inheritance contract or will so that your wishes can be fulfilled accordingly after your death.

An individual pension consultation also helps you make the right decisions for the future and avoid conflicts at a later date. Talk to an expert and protect yourself for the future.