Allocation of the Right of Residence or Usufruct of the Marital Apartment or House to the Surviving Spouse

Facts

This decision concerns a dispute between B.-S. and B.-F. and his brothers and sisters (appellants) regarding the allocation of the marital apartment or house to the surviving spouse. Art. 612a of the Swiss CC (CC) provides that the surviving spouse may request that the ownership of the marital apartment or house be allocated to them, to be imputed on their share. The question was whether this provision was of a mandatory or dispositive nature. The majority of legal doctrine considers that Art. 612a CC has a dispositive character. Thus, the deceased may, by disposition upon death, allocate to their spouse a right of residence or a usufruct on the marital home, instead of ownership. This interpretation is in line with the legislator's intent, as it emerges from the parliamentary work.

Considerations

The Federal Court held the following:

1. Art. 612a CC, which allows the surviving spouse to request the allocation of ownership of the marital home, has a dispositive character. The deceased may therefore, by disposition upon death, allocate to their spouse a right of residence or a usufruct instead of ownership.

2. This interpretation is in line with the legislator's intent…