6 What are the consequences of death?

In terms of the matrimonial property law: if there are no other clauses contained in a marriage contract or amending act, the common property is distributed fifty-fifty. The surviving spouse thus has in any case one-half of the common property in full ownership.
In terms of the inheritance law, the other half of the common property also goes in full ownership to the surviving spouse if there are no children. If there are children, then the other half goes in bare ownership to the children. Nevertheless, the surviving spouse maintains the usufruct on this half of the common assets. It is also possible to include specific clauses in the marriage contract that ensure that the surviving spouse is favoured after the death (Art. 1457 - 1460 CC).

The surviving spouse is also specially protected with respect to the inheritance law. Thus a minimum share (reserved portion) of the inheritance obligatorily goes to the surviving spouse, to the children and to the father and the mother of the deceased. However, the surviving spouse always receives at least the usufruct of one-half of the assets of the inheritance. This half includes at least the usufruct of the real property that served as the common residence and of the household assets present therein (Art. 745bis and 915bis CC).

As of 1 September 2018, the law on the reserved portion of the inheritance changes. As of then, the mother and father of the deceased are no longer included in the persons entitled to a reserved portion. Also, the new law provides for an unchanged ‘available portion’ (as opposed to the reserved portion) of one half of the estate, which means that the reserved portion is calculated differently amongst the children – they are entitled to a lesser portion than under the system in place until September 2018. The protection of the surviving spouse remains.