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Rights of the surviving spouse

The law has made major changes to rules on inheritance with respect to the surviving spouse, the surviving spouse is now considered a genuine heir , unless of course there has been a divorce or judicial separation.
But this does not mean that the surviving spouse always inherits everything. Sometimes he/she inherits alone but sometimes he/she inherits in common with the members of his/her deceased spouse's family.
  • If a deceased has surviving children born of the union with his/her surviving spouse :

    • T­he surviving spouse can inherit either the usufruct of the deceased's property (i.e. the right to use the property or enjoy the income from it) or theownership of one quarter, at his/her choice .
      It is very important for the surviving spouse to make this choice properly as any other heir may request that he/she does so.
      Unless the surviving spouse has chosen in writing within three months of the heir making such a request, the surviving spouse is considered to have opted for the usufruct.

    • The solution is the same if the surviving spouse him/herself dies before making a choice. The differences between usufruct and freehold are important, but once again, no solution is either all good or all bad in itself.

    • Every case is different. You should therefore ask your notaire to examine the situation before you take any decision which is theoretically final.

    • The usufruct owned by a spouse can be converted into a life annuity if the spouse or an heir so asks.

    • If there is disagreement, you can apply to a judge provided no final division has been made.

    • However, the surviving spouse must always give his/her consent before the usufruct of his/her main residence and the movable property it contains is converted.

    • Usufruct can also be converted into capital, but again the mutual agreement between the surviving spouse and the heirs is required.

  • If the deceased spouse has children other than those from the union:

    • The surviving spouse has no choice but to accept ownership of one quarter of the deceased's property.

  • If the deceased spouse leaves no children but or survived by his/her father and mother:

    • The surviving spouse receives half of the deceased's property while the parents receive one quarter each.

  • If the deceased spouse only leaves his/her father or mother:

    • The surviving spouse receives three-quarters of the property while the parent receives the remaining quarter. Under all circumstances, the deceased spouse may have reduced or annihilated the surviving spouse's rights in a Will .

  • If the deceased spouse has no children, grandchildren, father or mother:

    • The surviving spouse will inherit the entire estate other than property the deceased received as gifts or inheritance from his/her parents.

    • Half of this property reverts to the brothers and sisters of the deceased or their children or grandchildren. Where there are no descendants or ascendants, the deceased cannot totally annihilate the surviving spouse’s rights because by law, at least one quarter of the estate is reserved for him/her.

    • It should also be borne in mind that under all circumstances, the surviving spouse is entitled to the free enjoyment of the accommodation that was the couple's main residence and use the furniture it contains for one year after the death.

    • If the surviving spouse is the tenant of the premises, the rent is deducted from the estate, i.e. it must be paid by the other heirs.

  • Rights of the surviving spouse and accomodation

    • In addition, unless the deceased spouse has expressed a wish to the contrary in a notarised Will, the surviving spouse is entitled to live in the accommodation that was the couple's main residence and use the furniture it contains that are part of the estate until his/her own death.

    • In order to exercise this right, the surviving spouse must claim it within one year of the death. It is very important to get in touch with your notaire very quickly if you are to protect your rights. At this stage an inventory of themovables and a report on the condition of the building may be drawn up inorder to avoid disagreements.

    • Under exceptional circumstances, if the accommodation is no longer suitable for the surviving spouse's needs, he/she may let it out for non-commercial, non-agricultural use in order to receive income for use on other accommodation such as a retirement home.

    • This right of use and accommodation is deducted from the surviving spouse's share of the estate. If the value of this right is lower than the surviving spouse's share of the estate, he/she is entitled to have it topped up.

    • Otherwise the surviving spouse retains the entire profit and owes nothing to the other heirs. 

    • The surviving spouse and the other heirs may come to an agreement to convert this right into a life annuity or a capital sum.

    • Furthermore, the law favours the surviving spouse when allocating the couple's main residence and the movables furnishing it during the division of an estate.
      Time period for payment may be granted to the surviving spouse if, during the division he/she is found to owe monetary compensation to the other heirs.

    • Finally, if the surviving spouse is in financial difficulties, he/she may, within one year of the death, claim an allowance from the other heirs. 

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