In the event of death, if a married couple has not made any arrangements, the surviving spouse may face financial hardship because the joint heirs – for example their children – must be paid the inheritance they are due.
Most-favored clause as a solution
You as a married couple can enact what is called the most-favored clause, by way of property and inheritance law, in order to grant the surviving spouse the best possible financial protection. Since every family situation is unique, it makes sense to call on an advisor.
If you have not made any arrangements, you are subject to the marital property regime of participation in acquired property by law. This means
- The surviving spouse receives half of the total acquired property of both spouses in advance, which includes whatever savings have been set from income earned during the marriage.
- The other half of the total acquired property and the personal property of the deceased form the estate. Personal property consists of assets brought into the marriage as well as gifts and inheritances obtained during the marriage.
The advantages of a marriage agreement:
- You can increase each other’s share of the inheritance.
- You can allocate your entire acquired property to each other in the event of death under a marriage agreement. This reduces your estate to personal property.
More security for your surviving spouse
Testators can deviate from this and favor their spouse through a will or inheritance agreement. For example, as a spouse you could reduce your children’s portions to their statutory share and give the rest of the estate (5/8) to the surviving spouse.
Alternatively, your children can agree to a comprehensive inheritance waiver for the death of their first parent under an inheritance agreement.