This distinction gives the testator substantial freedom to dispose of their estate. The surviving spouse may therefore be deprived of his or her inheritance rights through a simple will, subject to private international law rules specific to each case. This freedom is essential for those who wish to organise their succession in a precise and personalised way. It is therefore crucial to be familiar with the legal rights of the surviving spouses and the various tools available to protect them.
The statutory inheritance rights of the surviving spouse in Monaco
In the absence of a will, Monegasque law provides that the surviving spouse is entitled to a share of the estate equal to that of a child, with such share not being less than a quarter of the estate. Therefore, this share varies depending on the number of children and represents at least a quarter of the estate.
However, the testator may freely reduce, or even eliminate, the rights of the surviving spouse through a will. Specific bequests granted to the surviving spouse are not cumulative with his or her statutory inheritance rights.
Consequently, the protection of the surviving spouse depends directly on the testator's wishes, who can plan his or her succession with broad discretion.
That being said, how to protect your spouse in the event of your death?
The Last Will and Testament
The will remains the simplest instrument to protect your spouse. Subject to the applicable private international law rules, the Will allows the testator to bequeath whatever they want to their spouse, within the limits of the freely disposable portion in the presence of reserved heirs. Indeed, depending on the testator's nationality, Monegasque private international law rules may exclude the concept of forced heirship, thereby allowing greater testamentary freedom in favor of the spouse.
The temporary right to housing
Monaco has reintroduced a temporary annual right to housing for the benefit of the surviving spouse. As explained in our previous article dedicated to this topic, Law n° 1481 of 17 December 2019 introduced a temporary right to housing over the family home for a period of one year. This right applies automatically, unless otherwise provided for in an authentic Will, which once again illustrates the primacy of the testator's wishes.
Gifts between spouses
Gifts between spouses, whether inter vivos (during their lifetime) or mortis causa (upon death), increase the surviving spouse's inheritance rights. These gifts may relate to all or part of the estate and may be freely revoked at any time.
Focus on division of property rights
This mechanism ensures the protection of the surviving spouse by granting him or her the usufruct of certain assets (allowing him or her to use the property and receive its income), while the bare ownership is transferred to the children. The usufruct ends upon the death of the usufruct owner, thereby automatically conferring full ownership to the bare owners.
In cases where spouses have children together, a spouse may dispose of all his or her assets in usufruct to his or her spouse. However, the children may request the conversion of this usufruct into a life annuity, unless it relates to the surviving spouse's main home or unless the deceased explicitly provided otherwise.
If there are no children, the surviving spouse may be granted bare ownership of the share normally reserved for the parents of the deceased through a Will. In this way, the assets do not pass to the brothers and sisters of the deceased upon the death of his or her parents, and revert directly to the spouse.
The marriage contract
The marriage contract plays a crucial role in planning the surviving spouse’s entitlements. In Monaco, the statutory matrimonial property regime is separation of property, but spouses may opt for a more protective regime. For instance, they may choose a universal community property regime combined with a clause granting full ownership to the surviving spouse, thereby enhancing his or her protection.
As explained in a previous article dedicated to this topic, spouses may also choose to have their matrimonial property regime governed by a foreign law, in accordance with the relevant private international law rules.
In any case, it is crucial to consult your lawyer to ensure that your matrimonial agreements comply with public policy rules and any applicable forced heirship rights.
Life insurance
Life insurance is also a valuable tool for asset transmission and protection. The capital paid to the designated beneficiary – e.g. the surviving spouse – is, in principle, excluded from the estate. As a result, it is not subject to forced heirship rules. However, there is an exception: if the premiums paid are considered manifestly disproportionate to the policyholder’s financial situation, and always subject to the applicable private international law provisions, the capital may then be reintegrated into the estate.
Private international law: an essential dimension to consider
Estate planning in Monaco must first and foremost take into account the rules of private international law, which are particularly important in such a cosmopolitan jurisdiction. Depending on your nationality, domicile, and the location of your assets, different laws may govern your succession. Foreign estate planning instruments – such as succession agreements or trusts – may be recognized as valid in Monaco and play a key role in protecting your spouse.
It is essential to seek advice from a lawyer specialized in Monegasque law and private international law to develop a tailored estate planning strategy.
