Decision on the Contractual Distribution of the Matrimonial Property Surplus in Favor of the Surviving Spouse

Facts

Fridolin Müller was married for the third time to Frieda Kopp, under the matrimonial property regime of community of property. On 7 February 1958, the spouses concluded a marriage and succession contract providing that the surviving spouse would receive the entire surplus of the matrimonial property. After Fridolin Müller's death in 1972, his daughter Emma Nobel brought an action for reduction of this provision in favor of the surviving spouse, on the grounds that it infringed her compulsory share rights.

The SCC held that the contractual distribution of the matrimonial property surplus in favor of the surviving spouse must be considered a testamentary disposition within the meaning of Art. 245(2) CO and is therefore subject to reduction to the extent that it infringes the compulsory share rights of the descendants. The case is remanded to the cantonal court for further investigation and a new decision.

Considerations

The SCC first recalled its previous case law, according to which matrimonial agreements on the distribution of the matrimonial property surplus in accordance with Art. 214(3) CC are not subject to reduction of the succession. However, it considered that it should re-examine this issue.

The Court held that the contractual distribution of the matrimonial property surplus in favor of the surviving spouse must be qualified as a testamentary disposition within the meaning of Art. 245(2) CO and is therefore subject to reduction of the succession, to the extent that it infringes the compulsory share…