A survivorship clause in a cohabitation contract: what you can arrange as a cohabitant in terms of inheritance

Those who, until the death of the testator, ‘shared a household on a long-term basis’, receive a minuscule right; namely, the continued right to occupy the home and to the contents owned by the testator for six months. If you want your partner to be well taken care of after your death, we advise you to draw up a will before a civil-law notary. Alternatively, you can include a survivorship clause in your cohabitation contract.

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Cohabitation contract

If you live together in a joint owner-occupied home, it is a good idea to draw up a cohabitation contract. In the cohabitation contract, you can record arrangements about any asset shifts and the contribution of ‘own money’ in the owner-occupied home. Furthermore, it is also possible to arrange certain things in case you or your partner dies. In a cohabitation contract this provision is called a survivorship clause.

In a survivorship clause you can arrange for joint assets to revert to the surviving partner upon the death of one of the partners. For example, joint bank accounts, an own home and household goods. After death, the surviving partner has the first opportunity to take over the other half of the joint assets.

Power of attorney attached to the survivorship clause

Because of the survivorship clause, ownership of the shared property does not automatically revert to the surviving partner. The shared property must still be transferred to the surviving partner under the obligation to assume the associated debts for his/her own account. Heirs may oppose this transfer. A possible solution to exclude heirs from the transfer of the shared property is to attach an irrevocable power of attorney to the survivorship clause. The surviving spouse can then independently ensure that the shared property is transferred to him/her, even if the heirs do not agree. A survivorship clause cannot, however, deprive any children of their right to their child’s share. If the rights of children are harmed by the survivorship clause, they can claim the shortfall from the surviving partner. You can limit the rights of the children by having a will drawn up.

Notarial cohabitation contract

Although it is not mandatory to have a cohabitation contract notarised, we recommend that you do so. This is because you can only arrange certain legal and tax matters by drawing up a notarial cohabitation contract. A notarised cohabitation contract is drawn up by a civil-law notary.

Will

If you want to leave your possessions to your partner after your death, for example an owner-occupied home that is not jointly owned by both of you, a survivorship clause will not help. After all, a survivorship clause is only a solution in the case of shared property. However, the contractual law of inheritance does provide various options in the form of making a will. A will is drawn up by a civil-law notary.

A will can also provide a solution for cohabitants with a survivorship clause in their cohabitation contract who share property. As explained above, a child may turn to the surviving partner. By including the non-enforceability clause in the will, cohabitants can prevent the inheritance of children and/or the inheritance of disinherited children from becoming payable immediately after death and the rights of the children or disinherited children from being harmed.

Difference between a survivorship clause and a will

The survivorship clause is solely an inheritance provision that can be included in a cohabitation contract if you want your partner to be left well cared for after your death and to receive the shared property. In a will, you can name the surviving partner as the heir. An heir succeeds the deceased without needing to take further action. The heirs can jointly become the owners of all the assets. In summary, a survivorship clause is not sufficient if you wish the entire estate to go to the surviving partner.

It is essential that you include a survivorship clause in your cohabitation contract and/or have a will drawn up. This will prevent inheritance disputes in the future.

Settling estates of cohabitants can be quite complicated. If you are in this situation, you should not hesitate to seek advice from an expert. I am happy to assist you with this.