What obligations do the heirs have towards the deceased's ex-wife?
The ex-spouse remains the heir of the deceased only if the following two conditions are met:
- the divorce must not have taken place yet;
- the separation decree must not have declared the surviving spouse to be charged.
Thus, the separated spouse is not only still a necessary heir of the ex, but is also entitled to the so-called legitimacy, i.e. to a minimum share of the ex’s assets. This right is definitively lost upon divorce. Divorce in fact dissolves all ties between husband and wife.
In addition, inheritance rights are already lost upon separation if the judge declares the so-called ‘debit’ in the relevant judgment. A debit is made in the event of breach of the duties of marriage (fidelity, material and moral assistance, cohabitation, respect, contribution to the needs of the family). For instance, a spouse who is unfaithful, or who leaves the family home without a justified reason, is charged.
The spouse who is charged with the termination of the family union may not, therefore, have any claim to the ex’s succession. It also follows that there can be no debit in the case of separation by mutual consent.
Maintenance is considered a personal obligation. Personal obligations do not pass into the estate. This means that the heirs do not have to continue paying maintenance to the surviving ex-spouse, with the difference however that:
- if there has only been separation, the surviving spouse is still entitled to his or her share of the estate;
- if there has also been a divorce, the surviving spouse is entitled to nothing.
If death occurs during the separation proceedings, the heirs are obliged to pay maintenance to the surviving spouse from the date of filing the separation petition until death. As mentioned above, the rights to the inheritance remain intact, except in the case of debit.
Whether at the time of death the divorce proceedings for the purpose of determining maintenance payments were still pending, or whether proceedings for the revision of maintenance payments were in progress, the heirs are entitled to conclude the proceedings.
The surviving ex-spouse, again, is entitled to receive maintenance allowance from the heirs, in any new determination, from the time of the court application until the date of the ex-spouse’s death.
VGS Lawyers is a law firm specialised in international separations, divorces and alimony.