Cohabitation in occupational pension provision

Pursuant to Art. 20a of the Federal Law on Occupational Retirement, Survivors' and Disability Pension Plans (BVG), the pension fund may, among other things, designate as beneficiaries of the survivors' benefits persons who have lived together with the insured person for an uninterrupted period of five years up to his or her death. However, the survivors' benefits are not defined in detail in the law, so that the pension funds are free to determine the type and scope of the survivors' benefits. Both pensions and lump-sum death benefits can be found in the regulations of the pension funds.

Five years cohabitation

As already stated, natural persons are eligible if they have lived together with the insured person for an uninterrupted period of five years up to the time of death. Only one person - i.e. not several persons - can fulfill this requirement. It is irrelevant whether the partner is of the same or different sex. The concept of cohabitation cannot in principle be equated with the requirement of a permanent undivided residential community. However, the pension fund may stipulate in its regulations that there must be a joint official residence in order for the partner in question to qualify as a beneficiary. If there is no cohabitation, it is not always easy to prove that there is a cohabitation. However, the cohabitation can also be proven on the basis of relevant documents or witness statements.

The duration of the cohabitation must also have lasted for more than five years without interruption and until the death of the insured person. If the five-year cohabitation requirement is not met, the surviving partner may still be able to benefit from survivors' benefits, provided that he or she was supported to a considerable extent by the insured person or if the partner concerned is responsible for the maintenance of one or more joint children.

Registration of the non-marital partnership

In practice, the regulations of the pension funds often stipulate that, as a formal prerequisite for survivors' benefits in respect of a non-marital partner, there must be a registration of the non-marital partnership. The Federal Supreme Court does not consider this very frequent formal requirement to be a violation of Art. 20a BVG, so that the obligation to formally register the non-marital civil partnership with the pension fund can certainly be required as a mandatory prerequisite for survivors' benefits vis-à-vis a non-marital partner. Therefore, insured persons are well advised to check individually in the applicable pension regulations whether the formal registration of the non-marital partnership is an indispensable prerequisite for any survivors' benefits. In case of doubt, it is advisable to register the non-marital partnership so that, in the event of an unforeseeable and tragic event, the surviving partner can be at least partially prevented from getting into financial difficulties.

In the following, it is shown on the basis of selected pension schemes that the formal registration of the non-marital partnership is to be carried out practically throughout:

Usually, the pension funds provide the necessary forms for the registration of the non-marital partnership on their homepage. The form must be completed accordingly and submitted to the pension fund.

As mentioned at the beginning, not all couples enter into marriage today. With regard to possible survivors' benefits for non-marital partners, it should be noted that additional formalities usually have to be completed during their lifetime.

This article has already been published in CORE-Newsletter 30 of December 2021.

Zacharias Zwahlen
Head of Business and Legal Advice
Attorney at Law
zzw@core-partner.ch