Similarities and differences in inheritance law in Germany, Austria and Switzerland

Quick Summary

German, Austrian and Swiss inheritance law are relatively similar in an international comparison. However, there are numerous differences in the details, the effects of which should not be underestimated in practice.
All three countries have a statutory succession system according to which spouses and relatives (descendants, parents, siblings, grandparents, etc.) of the deceased are entitled to inherit, provided the deceased has not made a will or contract of inheritance. Spouses and descendants are also entitled to a specially protected right to a compulsory portion to. If there are no legal heirs, the estate goes to the community.
In the case of married testators, the spouses must be separated under matrimonial property law before the estate is divided. Germany, Austria and Switzerland have very different solutions for this.
In all three states, the testator can dispose of their estate by will or contract of inheritance. This requires capacity and a minimum age, and special formal requirements must be observed. A will or contract of inheritance can contain various provisions, e.g. legacies, bequests, division rules, conditions, requirements, disinheritance or execution of a will.
In Germany and Switzerland, the heirs take over the inheritance jointly immediately upon the death of the deceased(universal succession and universal inheritance). However, they can renounce the inheritance retroactively. In Austria, the estate is a separate legal entity and the heirs only acquire ownership of it by means of a special procedure known as ” Einantwortung”, which is conducted by a court commissioner.

Why are German, Austrian and Swiss inheritance laws similar?

The German, Austrian and Swiss legal^systems1 have common historical roots that go back hundreds or even thousands of years. Some principles of inheritance law can already be found in Roman law, others were developed in the Middle Ages or only in modern times.

When revising a specific area of law, it makes sense to use the legal situation in countries that are close in terms of language, history and culture as a point of reference. These comparative legal approaches in legislation and case law also result in certain similarities between neighboring countries.

statutory succession

These similarities fundamentally concern the system (i.e. the logical structure) of inheritance law: German, Austrian and Swiss inheritance law recognize a statutory succession. statutory successionwhich always applies if a testator does not leave a disposition of property upon death.

It is assumed that it is in accordance with the testator’s will that the spouse or registered partner as well as the closest living relatives should become heirs. These are referred to as legal heirs. The closest living relatives are the descendants (1st parentel or order), the parents, siblings, nephews and nieces etc. (2nd parentel) as well as the grandparents, uncles, aunts, cousins etc. of the deceased (3rd parentel). Heirs of the 1st parentel exclude those of the 2nd parentel from sharing in the estate, and heirs of the 2nd parentel exclude those of the 3rd parentel. The head of a tribe inherits first (1st parentel: children, 2nd parentel: parents, 3rd parentel: grandparents); if this person has predeceased the deceased, their descendants take their place.

In Switzerland, the legal right to inherit ends with the 3rd parentel, while in Austria it ends with the 4th parentel (great-grandparents); in Germany, heirs of the 5th and even more distant parenteles are also entitled to inherit. If a deceased person leaves neither legal heirs nor a disposition of property upon death, the community inherits in all three countries (Germany: state or federal government; Austria: federal government; Switzerland: canton or municipality). In Germany and Switzerland, the state also levies an inheritance taxin Austria this was abolished in 2008.

All three states have special legal regulations for the inheritance of agricultural businesses. This is intended to ensure the economic viability of farms and prevent the fragmentation of agricultural land.

Married testators: matrimonial property law and inheritance law

For married testators the provisions of the individual states on matrimonial property law and intestate succession vary, according to which the surviving spouse and relatives must divide the inheritance between themselves.

The relationship between (ordinary) matrimonial property law and inheritance law plays an upstream but often central role in the succession:

In Switzerland, the death of a spouse generally results in an ordinary matrimonial property settlement, the result of which is the estate of the deceased spouse. This is then divided according to the rules of inheritance law.
In Germany, a simplified equalization of gains is carried out by increasing the surviving spouse’s inheritance share by a quarter of the inheritance.
In Austria, there is no property settlement at all in the event of dissolution of marriage by death.

Furthermore, the division of the estate between spouses and relatives in all three states depends on which party is entitled to inherit (see above): The closer the relatives are to the deceased, the more they inherit, and vice versa.

Testamentary capacity

Similar in principle but different in detail are the regulations on who can benefit other persons under inheritance law and under what conditions:

To do this, the future testator must first capable of making a will be capable of making a will. The testamentary capacity consists of the components “capacity of judgment” and “minimum age” together. A person is deemed to have capacity if they are able to understand the significance of a declaration of intent they have made and to act in accordance with this understanding. Capacity is presumed in all three legal systems unless there are clear indications of a restriction, for example due to mental disability, mental disorder or intoxication. The minimum age for making a valid disposition of property upon death is 14 years in Austria (with formal restrictions), 16 years in Germany and 18 years in Switzerland.

Forms of disposition on death

A disposition under inheritance law makes it possible to deviate from the statutory order of succession by making individual arrangements regarding the estate. In Germany, Austria and Switzerland, it can take the form of a testamentary disposition (colloquially known as a “will”) or an inheritance contract assume. A testamentary disposition is unilateral and can be revoked at any time, while an inheritance contract is a bilateral or multilateral, binding transaction and can only be amended or revoked under special circumstances.

In all three states, an ordinary testamentary disposition can be made by hand or by public (notarial) authentication be drawn up. In Austria, there are also the options of a will drawn up by a third party or by court order. There are also various options for drawing up an emergency will, although these are of little practical significance.

A inheritance contract can be concluded between any persons in Germany and Switzerland. In principle, the form of notarization must be observed. In Austria, an inheritance contract can only be concluded between fiancées, spouses and registered partners, although this rarely happens in practice. There are various possible contents of an inheritance contract, in particular the (positive) contract for the granting of an inheritance and the (negative) contract of waiver of inheritance. In principle, an inheritance contract does not restrict the freedom of disposal during the deceased’s lifetime, but contractual heirs may be able to withdraw from the contract or contest legal transactions that violate their claims under the inheritance contract after the deceased’s death.

In principle, dispositions by reason of death must be submitted to the authority responsible for the settlement of the inheritance. authority the estate. After a death, this authority conducts the proceedings, checks the validity of the dispositions and discloses them to the heirsi.e. it informs them of their content. If the legally prescribed form is not observed or if the disposition suffers from other defects, it can be contested by means of an action or, in exceptional cases, may even be null and void. In case of doubt, it is important to comply with the statutory time limits for bringing an action; if these have expired, it may no longer be possible to bring an action for reasons of legal certainty.

Content design options

A testamentary disposition or an inheritance contract can contain various types of instructions. These contents are very similar in Germany, Austria and Switzerland.

The most common beneficiaries are heirs and legacies. With the appointment of an heir the testator appoints another person as legal successor; they inherit all or a fraction of the testator’s assets (e.g. 10% of the estate) and are liable for their debts. With a legacy (bequest) the testator can grant a pecuniary benefit to another person in their will without appointing them as heir. This person acquires a claim against the estate or the beneficiaries to receive the object of the bequest (e.g. a sum of cash, a work of art or a property). The bequest must in particular be subject to the division provision by which an heir is allocated a specific item of the estate to be offset against his or her inheritance share.

However, a disposition of property upon death can also provide for disadvantages for the persons named therein. For example, it can make a beneficiary subject to conditionsconditions, impose conditions on the heirs or legatees, change the inheritance share or even provide for exclusion from the inheritance (disinheritance).

It is also possible in all three states to appoint an executor or executor of the will and entrust them with the execution of the testamentary dispositions.

Compulsory portion, disinheritance and ineligibility to inherit

Certain close relatives have a specially protected inheritance claim, the so-called compulsory portion. In Austria and Switzerland, descendants and the spouse or registered partner of the deceased are protected by the compulsory portion, while in Germany the parents of the deceased may also be protected.

Since 2023, the compulsory portion in all three states has been half of the statutory inheritance entitlement (see above). To determine the compulsory portion, the “pure estate” (assets less debts) at the time of the deceased’s death is used as a basis, to which to which certain benefits are added (in particular lifetime gifts, advance withdrawals, inheritance settlements, etc.). The calculation of the compulsory portion can be very complex in detail, which is why advice from specialists is particularly recommended in this area. The same applies to the offsetting (offsetting) of lifetime gifts against the inheritance share.

Whether disinheritance is permissible depends on who the heirs of a testator are in the specific case, as the compulsory portions can only be withdrawn under special conditions(more on the grounds for disinheritance). In Germany and Switzerland, the reason for disinheritance must be recorded in a disposition of property upon death; this is not necessary in Austria.

All three states also recognize so-called grounds for unworthiness to inheritwhere the person responsible for such grounds is unworthy of inheritance by law (i.e. without a special order by the testator) and thus excluded from participating in the succession.

In Switzerland, those entitled to a compulsory portion who assert their claim by filing a lawsuit receive full status as heirs (i.e. also certain rights to information and participation within the community of heirs); in Germany and Austria, they are only entitled to a compensation claim in terms of value. The compulsory portion can also be compensated through lifetime gifts or a so-called “compulsory portion legacy”.

Course of the inheritance

Finally, there are various differences regarding the settlement of an inheritance. In Germany and Switzerland, the principle of universal universal succession (universal succession) and universal acquisition. This means that a person’s assets are transferred in their entirety to one or more persons upon their death. The right to waiverby which the heirs can make a legally binding declaration within a certain period of time that they do not wish to accept the estate.

The procedure is somewhat different in Austria: There, upon death, the so-called “estate” as a legal entity continues the legal position of the deceased. The estate is therefore legally independent and does not automatically become the property of the heirs. Instead, this requires an “Einantwortung“, i.e. a formal declaration to accept the inheritance. The Austrian system of judicial “administration”is also special. The court responsible for the estate appoints a notary as court commissioner, who ensures that the will of the deceased is enforced. Although these formalities make the Austrian probate procedure somewhat more complex overall, they can also considerably reduce the burden on the heirs by involving specialists.

In all three states, initially only all heirs can jointly administer the estate and only jointly (i.e. unanimously) dispose of the estate assets(community of heirs). However, each co-heir can in principle at any time division of the estate (division) at any time and dispose of their share of the estate themselves, subject to certain restrictions. In the division of the estate, the estate items are inventoried, the claims of the individual heirs are quantified and each heir is allocated estate items to the value of his or her inheritance share, which he or she can then dispose of alone. Only in exceptional cases is an inheritance liquidated, i.e. the estate items are disposed of (sold or auctioned) and the proceeds divided between the heirs.

Cross-border inheritance cases

Nowadays, family groups are increasingly extending across national borders. The free movement of persons also means that the number of cross-border inheritance cases increasing steadily. In such cases, three key questions need to be answered on the basis of the private international law of the countries involved:

Which authorities are responsible for dealing with an inheritance case? – Typically, the main point of reference for jurisdiction is the deceased’s last place of residence or habitual abode before death. Special links may arise, for example, from the nationality of the deceased or the location of property in the estate.
Which law is applicable to the estate? – In principle, the applicable law is also that of the last country of residence or habitual abode of the deceased. A choice of law in favor of the country of residence by disposition of property upon death is permissible. So if you live in one of the three countries (Germany, Austria, Switzerland) and are a citizen of another, you can specify in your will which law should apply to your inheritance.
Can a decision on the succession issued in one state be recognized and enforced in another state? – The recognition and enforcement of decisions, measures and deeds relating to the estate depends primarily on whether the state in which the decision was made was competent to issue it from the perspective of the state in which it was recognized. Jurisdiction is generally assumed, for example, if a decision to be recognized abroad originates from the deceased’s last country of residence.

In Switzerland, the answer to these three questions is the Federal Act on Private International Law (IPRG) is authoritative. In Germany and Austria, Regulation (EU) No. 650/2012 (EU Succession Regulation) is the most important legal act and has largely replaced the previous national regulations.

International inheritance cases can quickly become very complex and confusing due to the large number of potentially relevant legal norms. Here, too, it can be particularly useful to specialist advice advice. We would be pleased to assist you with our free initial legal advice.

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[1] Where no reference is made in this text to specific country-specific legal institutions, the terminology used corresponds to Swiss legal practice. Different meanings of terms in other countries are possible.