Inheritance: the family home

Nobody likes to think about death, and it always seems too early to draw up a will. However, it is important to do so to avoid family conflicts. Without expressing one’s wishes in writing before leaving our loved ones forever, it can happen that heirs find themselves in a situation of conflict.

One’s assets are not always easy to divide. Money is easy to divide. But what happens with real estate? When, in addition to the widow or widower, there are also children who have legal rights to the estate?

Usufruct of the house for the surviving spouse

For the surviving spouse, the death of the spouse or consort, in addition to great sorrow, also leads to complicated consequences to deal with in the absence of precise guidelines for the succession. The widow or widower is sometimes forced to sell the family home to be able to financially liquidate the children with their legitimate share.

To avoid this, spouses should protect and favour each other through a marriage agreement or contract. In essence, they could favour each other by agreeing that all assets acquired and accumulated during the marriage would be assigned to one or the other in the event of the death of one of the spouses. In this way, the children would receive only their legitimate share upon the death of one of the parents. The surviving spouse or consort could receive a share in property and another share as life-long usufruct of the family home.

Beware, however, that this right to usufruct lapses when the widow or widower remarries or forms a registered partnership. The option of the usufruct of the house for the surviving spouse also includes duties, so it is advisable to consult experts dealing with inheritance law.

Changes for couples

As of 1 January 2023, the law of succession has made some changes. If there is a will, you can freely decide on half of your estate. Before the revision one could only decide on 3/8 of the estate. The inheritance for children is reduced to half of their legitimate share. The legitimate share of inheritance for parents, on the other hand, is abolished and that for the surviving partner is not changed, half of the legitimate share of inheritance remains.

Divorcing couples may exclude one or the other from the right to inheritance. Before the amendment to the law, this was only possible once the divorce decree had been obtained. Since the amendment to the law of succession came into force, it is already possible to exclude the former partner from one’s will during divorce proceedings. Couples who have been living separately for more than two years may also disinherit each other by means of a will, even if they have not yet started the proceedings to dissolve the marriage union.

For couples living in concubinage, the law has not changed. The latter have no legitimate share of the inheritance in the event of the death of one or the other. To protect one’s partner, either a contract or a will can be made.

In the absence of a will, the right to inheritance remains the same. In this case, in the absence of a will and in the law of matrimonial property of the deceased, half passes to the surviving spouse and the other half to the children.