Example: An Austrian-French couple got married in Austria in the year 2005 and moved with their common child from Austria to Switzerland due to a change of jobs. The couple neither concluded a pre- nor a post-nuptial agreement. The wife dies unexpectedly.
Which matrimonial property law applies to the spouses?
If the spouses did not conclude a pre or a post nuptial agreement, Swiss matrimonial property law, retrospectively to the date of the marriage, applies automatically with their relocation to Switzerland. Consequently, the Swiss default regime of participation in acquisition or “Errungenschaftsbeteiligung” applies (and no longer the Austrian matrimonial property regime that had been applicable until the relocation). Under the regime of participation in acquisition, each spouse has two types of properties: the individual property (e.g. pre-marital assets and gifts or inheritance received during the marriage) and the property acquired during the marriage (e.g. income from work and earnings from individual property). If one of the spouses passes away, the separation of the matrimonial goods take place. The spouses’ assets of all types are determined, each spouse takes back his or her individual property and each spouse is entitled to half of the other’s net acquired property (so-called surplus or “Vorschlag”).
Does the same happen if the couple divorces?
Yes. In the absence of a pre- or post-nuptial agreement, Swiss matrimonial property law applies and the separation of matrimonial goods is done in the same manner.
How are the spouses’ goods divided between the surviving spouse and the child?
In Switzerland, the division of the estate is preceded by the separation of matrimonial property between the spouses. This means that upon the death of a married spouse, the spouses’ goods are in a first step separated in accordance with the matrimonial property law in order the determine the surviving spouse’s marital entitlement (not inheritance entitlement). Likewise, the deceased spouse’s entitlements under matrimonial property law together with his individual property fall into the estate. Only when it has been determined under matrimonial property law which goods belong to the deceased’s estate, it will be decided based on the applicable inheritance rules who will inherit how much.
Could the couple have excluded the retroactive application of Swiss matrimonial property law prior to moving to Switzerland?
A: Yes. The couple could have concluded a pre or post nuptial agreement in accordance with Austrian or French law or could have agreed in writing on the exclusion of the retroactive effect of Swiss matrimonial property law or the continued application of the former (Austrian) law.
Can a couple exclude the retroactive application of Swiss matrimonial property law after moving to Switzerland?
Yes. The couple could have declared Austrian or French matrimonial property law (laws of their citizenship state) applicable in a written nuptial agreement under Swiss law.
What else needs to be considered for matrimonial goods planning?
For matrimonial goods planning, any partnership agreements with marital property regime provisions must also be considered. In the case a marriage on or after 29 January 2019, the provisions of the European Regulation on Matrimonial Property Regimes (EU Regulation on Matrimonial Property Regime) apply.
Is there need of advice?
In order to minimise the risk of unexpected and problematic results, a careful matrimonial goods planning or a review of the existing pre- or post-nuptial agreements is essential when moving to Switzerland. A conscious decision for or against a choice of law as well as the harmonisation of matrimonial property law and inheritance law are strongly recommended.
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