The Blended Family

My husband and I have three children together. From a previous relationship, my husband has a son with whom we have no contact. We have neither a marriage contract nor an estate planning arrangement in place. How can I ensure that my children receive as much as possible from my estate, especially if I were to pass away before my husband?

You describe your blended family situation and your desire for the four children to inherit solely according to their respective parentage from the parental estate. By law, if your husband predeceases you, both you and his four offspring would inherit half. Before the distribution of the estate, the division of the matrimonial property between the spouses must be conducted. Only after the allocation of the marital assets to each spouse's estate will it be clarified what is even included in the estate.

In the event that you predecease your husband, your three children and your husband will form the estate community. Upon the second death of your husband, his four children will inherit equally, thereby indirectly benefiting the non-biological son from your original estate.

In your case, a regulation through a life interest with subsequent inheritance could be sensible. However, when implementing your plan, consideration must be given to your husband’s mandatory share in your estate. For instance, if you leave behind CHF 400,000, your husband’s mandatory share would currently amount to CHF 100,000. Your stepson could assert his inheritance rights against this mandatory share of your husband. Therefore, there are limits to a life interest with subsequent inheritance. A reduction in the mandatory share of descendants under future inheritance law (according to the upcoming legislative change) might additionally provide the opportunity to prevent the flow of assets from you to your stepson at the time of your husband’s second death by implementing different inheritance shares.

An alternative to the life interest with subsequent inheritance could be to favor your three children early during your lifetime and, if necessary, establish a usufruct in favor of you and your husband. These assets would then not even enter your estate upon your later passing.

If there are significantly different shares of the marital property between the spouses, a change to a different marital property regime should be considered. This would need to be executed with a notarized deed.

The legally simplest way would be to have an inheritance agreement notarized together with all four children, taking into account the differing parentage and inheritance claims.

Beyond these financial aspects, in this blended family situation, it may be advisable for the management of the estate to address certain descendants' inheritance claims through a bequest to prevent the formation of an estate community with stepsiblings or a stepmother. For the same reasons, the appointment of an executor should be considered.

Lucerne, February 15, 2021

Reto Marbacher