I own an apartment and am married with three children. What can I put in place so that, after my death, my wife can continue to live in this home? (René Z., Confignon)
To guarantee that one’s spouse has the right to reside in the property one owns, it is possible to grant them the use and enjoyment of the property through usufruct or a right of habitation. These two legal institutions are very similar, with the right of habitation being governed in part by the same legal provisions as those applicable to usufruct.
Usufruct may apply to movable property, rights, an estate, or real estate, the latter being referred to as a real estate usufruct. This right generally grants the beneficiary, called the usufructuary, full enjoyment and total usage rights over the property. In contrast, the right of habitation, which grants fewer prerogatives than usufruct, is limited exclusively to the right to reside in the property or to occupy part of it.
Legally, these two rights are personal servitudes, inherently attached to the person who holds them. As strictly personal rights, they are non-transferable and do not pass on to heirs. However, unlike usufruct—under which use of the property can be transferred to a third party (the usufructuary may therefore, unless otherwise agreed, rent out the property)—the right of habitation is highly personal in nature and may never be transferred to a third party. Only the beneficiary may reside in the property.
The creation of a usufruct or a right of habitation may arise from an agreement (contract, inheritance agreement, will) or from a situation provided for by law.
That said, for a contract establishing a usufruct or a right of habitation over real estate to be valid, it must be drawn up in authentic form, that is, as a notarial deed. Furthermore, for the right to be validly constituted, the owner must request its registration in the Land Register. Without this registration, the right will not take effect, even if the parties have agreed to it. When the usufruct or right of habitation is established in a will or inheritance agreement, it is up to the heirs to request registration.
If nothing has been arranged by agreement, the Civil Code also provides, under specific legal conditions, the possibility for the surviving spouse to request that a usufruct be granted over the property in which the couple lived, in order to maintain his or her standard of living.
Thus, your wife could have a legal right to a usufruct without any prior steps needing to be taken. You may also provide, in a will, that your wife will benefit from a usufruct or a right of habitation over the apartment you own.
The usufructuary is free to modify the layout of the property as they wish, provided this does not alter the substance of the building. They may also choose not to reside in the property and may, in principle, rent out all or part of it. However, the surviving spouse who has exercised their right to a usufruct over the deceased spouse’s property may not rent out the property, as the law seeks to ensure that the surviving spouse resides there personally. The same applies to the beneficiary of a right of habitation, who has possession of the property, manages it within the limits of their duty to maintain it, and uses it solely for their own residential purposes.