Revision of Swiss inheritance law

Amendment of 18 December 2020, entered into force on 1 January 2023

Swiss inheritance law now allows the testator to enjoy greater freedom as regards disposing of his/her assets.

Reason for this revision:

In adopting this amendment to the law of succession, the legislature’s main objective was to increase the testator’s freedom of disposition; In particular, the lawmaker wished to take account of the marked tendency in Europe to reduce the statutory inheritance entitlement applicable to descendants, Swiss law being one of the most restrictive to date. In practical terms, this flexibility will give the testator more flexibility when deciding on the distribution of his/her assets, particularly in the case of blended families or in the difficult context of the transfer of family businesses to the next generation. The date of death (before or after 1 January 2023?) is decisive for determining the law applicable to statutory entitlements.

Statutory inheritance entitlements for estates opened before 1 January 2023

Prior to this revision (law in force until 31 December 2022), descendants jointly hold, irrespective of their number, a statutory inheritance entitlement equivalent to three-quarters (3/4) of their statutory shares. Thus, a testator, a widower or a divorced man with two children, is required to allocate to his/her descendants three quarters (3⁄4) of the estate, the balance of one quarter (1/4) representing the “disposable part”, which may be allocated to a third person or to any of the heirs with a statutory entitlement in addition to his/her statutory entitlement.

Similarly, a married testator must comply with a statutory inheritance entitlement of one quarter (1/4) in favour of his/her spouse (after liquidation of the matrimonial property regime), a statutory inheritance entitlement of three eighths (3/8) going to his/her children, i.e. the total of the statutory entitlement shares representing five eighths (5/8) of the estate. The balance represents a share of three-eighths (3/8), which the testator may allocate to a third person or to his/her spouse (who thus receives a share of five-eighths (5/8)) or to his/her children (who then receive a share of six-eighths (6/8).

Statutory inheritance entitlements for estates opened on or after 1 January 2023

The main change concerns the reduction in the share of the statutory entitlement of descendants, which now amounts to one-half instead of three-quarters of their statutory share.

As a result, the testator, whether widowed or divorced, is free to dispose of half of his/her estate instead of only one quarter.

Similarly, the married testator must henceforth observe (after liquidation of the matrimonial property regime):

• his/her spouse's statutory one-quarter share (unchanged),
• his/her descendants' statutory one-quarter entitlement, to be divided among his/her children, whatever their number,

i.e. statutory entitlements amounting to half of his/her assets, the other half being attributable to either of his/her children or to his/her spouse (in which case the spouse may receive three quarters (3/4) of the estate).

Does the testator need to rewrite his/her will?

In the event that the intention expressed by the testator is to grant to one of his/her heirs “the maximum possible” or, on the contrary, “the minimum (the statutory entitlement)”, the statutory entitlements in force on the date of the opening of the succession shall apply even if the will was drawn up before 1 January 2023. It is therefore not necessary to make a new will.

If, however, the last will and testament expressly mentions fractions (e.g. “three-eighths to my children”), then the fractions expressed shall be applied as they are, without any possibility of automatically assuming that the deceased would have wished them to be adapted to the new rules. If necessary, the testator must rewrite a will if he/she wishes to make use of the new rules.

Cancellation of parents’ statutory entitlement

Under the new provisions, parents are no longer heirs with a statutory entitlement. Thus, a testator without children (married or unmarried) is no longer required to transfer a statutory share to his/her parents. He/she may thus allocate the entire estate to his/her spouse, who in this case benefits from a statutory entitlement of three-eighths (3/8) after liquidation of the matrimonial property regime.

As for siblings, it is important to bear in mind that they have not had a statutory inheritance entitlement under Swiss law for more than 30 years.

It should be noted, however, that despite not being entitled to a statutory inheritance, and absent any will, the parents and their descendants remain legal heirs. Therefore, should a married person without children provide that, in the absence of a will, his/her spouse will not be able to avail himself/herself of a right to the entire estate: A one-quarter (1/4) share of the estate shall then accrue to the father and mother of the deceased and, should they predecease him/her, to their issue (siblings, nephews and nieces, etc.). This aspect of inheritance law is ignored in practice and too often creates painful misunderstandings for the surviving spouse.

Entitlement to statutory entitlement of a separating spouse

In difficult divorce proceedings, the testator may remain bound for many years to his/her spouse's share of the statutory inheritance entitlement, sometimes suspected of prolonging the proceedings on purpose.

To clarify this type of situation, the law provides that, in the absence of a final divorce decree before the day of death, the spouse is no longer an heir with a statutory inheritance entitlement if, at the time of death, divorce proceedings are pending on joint petition or if the spouses have lived apart for at least two years.

With regard to dispositions of property upon death made in favour of the spouse, and unless otherwise agreed by the testator, the mere introduction of divorce proceedings (and not just the divorce decree itself) which results in the loss of the surviving spouse’s entitlement renders such dispositions of property upon death null and void.

Protection of beneficiaries of commitments entered into under contracts of inheritance

The legal significance of commitments entered into by the testator in a contract of inheritance in favour of the other parties to a deed has long been debated. For example, how can a person who is promised an allotment of real estate at the time of death be protected when the testator, after signing the contract, allots it to a third person by means of an inter vivos gift or by means of a unilateral will?

The law now protects the beneficiaries of commitments arising from the contract; they may, upon the testator's death, challenge in court gifts and testamentary dispositions made by the testator after the conclusion of the contract of inheritance and which are irreconcilable with his/her commitments (unless the contract specifically reserves the right of the testator to freely dispose of them signing the contract!).

Statutory entitlements as of 1 January 2023 – summary

A) Statutory heirs: children and surviving spouse

B) Statutory heirs: children, no surviving spouse

C) Statutory heirs: father and mother, along with a surviving spouse

D) Statutory heirs: surviving spouse, without any issue of the parents