When a person is domiciled in Switzerland, the Swiss judicial or administrative authorities of the deceased’s last domicile are competent to settle the inheritance and rule on inheritance disputes, with the exception of buildings located abroad, which are subject to the exclusive jurisdiction claimed by the foreign state in which they are located.
Swiss authorities will apply Swiss law, unless the deceased submitted their inheritance to their national law.
In Switzerland, the law clearly states who will inherit in case of a decease. However, a will or inheritance agreement allows you to modify at least part of the distribution of your estate.
Who are the legal heirs?
Swiss inheritance law imposes a statutory order of inheritance, which is valid as long as the deceased did not make any testamentary provisions.
According to the Swiss Civil Code, the order of inheritance is determined by a system of lines. There are three different lines of statutory heirs :
• The first one comprises of the deceased’s descendants (children, grandchildren, great-grandchildren, etc.).
• The parents of the deceased and their descendants (i.e. the deceased’s siblings) compose the second line.
• The grandparents and their descendants form the third line.
There is a hierarchy among the three lines: as long as at least one member of a line can inherit from the deceased, all members of the following lines are excluded from the inheritance.
The surviving spouse or registered partner of the deceased inherits outside the system of lines, despite being considered a statutory beneficiary.
The surviving spouse or registered partner is entitled to:
• 50 percent of the inheritance, if there are any heirs in the first line;
• 75 percent of the inheritance, if there are heirs only in the second line;
• the entire inheritance in the absence of any other statutory heir.
Four general principles apply to lines of statutory heirs :
• Priority: within one line, the older generation inherits and excludes the following generations from the inheritance;
• Equality: the heirs of the same generation inherit equally;
• Representation: if, for various reasons (predecease, disinheritance, unworthiness to inherit or disclaimer), heads of one line cannot inherit, their descendants generally represent them and inherit instead ;
• Distribution: if an heir does not inherit and is not represented, their share is distributed between the other heirs within the same line.
What is the statutory entitlement ?
Among the legal heirs, some have a statutory entitlement, which means that these heirs must necessarily receive a share of the inheritance (their statutory entitlement ).
The statutory entitlement, namely the minimum share of the inheritance that a legal heir must receive, is as follows:
• for the surviving spouse or registered partner: their statutory entitlement is of half their legal share, resulting in 25% of the inheritance if there are heirs within the first line.
• for the descendants (grandchildren or great-grandchildren if the children are predeceased): their statutory entitlement is of half their legal share in the absence of any other legal heir.
The surviving spouse loses the statutory entitlement as soon as divorce proceedings are pending if (a) the procedure was introduced by joint request or (b) the spouses have lived apart for at least 2 years.
Keep in mind that divorce proceedings result in the loss of the statutory entitlement only, meaning that the surviving spouse maintains their right to their legal share of the inheritance. It is mandatory to draw up a testamentary provision during divorce proceedings if the surviving spouse is to be deprived of their legal share of the inheritance. This means that a simple will is now all that is needed to fully disinherit a spouse during divorce proceedings.
The parents’ statutory entitlement was removed in the revision of inheritance law. Until the end of 2022, the parents’ statutory entitlement amounted to half of their legal inheritance share. Under the revised inheritance law, parents only inherit according to the legal order of succession, i.e. when the testator has no descendants and the available portion has not been settled otherwise by a will or an inheritance agreement.
How to draft a will?
Except under exceptional circumstances, there are two ways to write a will. The first one is to do it personally, in writing, which offers the advantage of being flexible, as you may revoke it easily. The second one takes the form of a public deed. It is much more formal and consists of appearing before a public notary, accompanied by two witnesses.
In a will, you can change the legal order of inheritance and determine what each heir will inherit. However, the law does not give you complete freedom. As previously mentioned, the spouse and descendants are entitled to their statutory entitlement at least. Should this not be respected, they can claim their entitlement in front of a Court.
When drafting a handwritten will, you should consider the following points:
– Your will must be drafted entirely by your hand, dated and signed. It is therefore is not possible to type your will.
– In order to avoid misunderstandings, your will should clearly indicate that all previous documents are revoked.
– We advise appointing an executor. The executor’s mission consists of managing the estate, preparing the distribution of the inheritance according to the will and respecting and enforcing any instructions from the testator related to his death.
– Instead of appointing a person as an heir, you can also bequeath them a sum of money or a specific object. The person who receives a bequest (or legacy) has fewer rights and obligations than an heir. In a will, a clear distinction must therefore always be made between inheritance and bequest.
– In your will, you may determine initial and substitute heirs. This allows you to control not only who receives a share of your inheritance, but also what should happen to that share after that heir’s death.
– If you are married, you may grant the usufruct of part of the estate, which would otherwise be left to the common descendants, to your surviving spouse. This grants the surviving spouse the use and administration of said property for life (or until a certain point in time).
As a general rule, it is important to make sure that your will is formulated as clearly and simply as possible to avoid any form of misinterpretation. We also advise you to register your will with the competent cantonal authorities.
01.09.22 – Amélia Rauss and Gabriel Raggenbass
