Quick Summary
- The Swiss Civil Code recognizes four types of inheritance: disinheritance, disinheritance, renunciation and waiver of inheritance.
- Each of these four types of inheritance deed is used in different situations. They have different requirements that must be met and different legal consequences.
- Only disinheritance and disinheritance also affect the compulsory portion.
- Depending on the type of inheritance agreement, descendants may become heirs.
The four reasons for exclusion at a glance
The decisive difference between the four types of inheritance exclusion lies in the person from whom the exclusion originates:
- Ineligibility to inherit (Art. 540 ZGB): Occurs automatically by operation of law if the person unworthy of inheritance has carried out certain acts. This may be the case, for example, if the person unworthy of inheritance has deliberately killed or attempted to kill the deceased person.
- Disinheritance (Art. 477 ZGB): Must have been expressly stipulated by the deceased person in the will or inheritance contract. Here too, however, the disinherited person must have committed serious acts. For example, if the disinherited person has committed a serious crime against the deceased person.
- Renunciation (Art. 566 ZGB): The person entitled to inherit decides not to accept the inheritance. The heirs have a period of three months in which to disclaim the inheritance.
- Waiver of inheritance (Art. 495 ZGB): The waiver of inheritance is agreed between the heirs and the testator during their lifetime and must be notarized.
The effectiveness of the various inheritance contracts
Each form of inheritance agreement differs in terms of when it must be stipulated or disposed of and when it becomes effective. The waiver of inheritance, for example, is the only form of exclusion that is agreed with the testator during his or her lifetime. Disinheritance is also agreed during the testator’s lifetime. However, it only takes effect in the event of death.
Ineligibility to inherit can occur both before and after death – the decisive factor is the time of the reprehensible act. Because the law sets relatively high hurdles for unworthiness to inherit, it does not even have to be asserted by the deceased person or other heirs: Ineligibility to inherit applies by operation of law. The waiver always takes place after the inheritance and must be made within the statutory period of three months. In the case of legal heirs, the period begins with the knowledge of the death; in the case of appointed heirs, it begins with the official notification that they have been appointed as heirs.
Effects on the compulsory portion
A key difference between the various types of exclusion is the effect on the compulsory portion. In the case of disinheritance and valid disinheritance, the persons concerned lose their entire inheritance entitlement, including the compulsory portion.
In the case of a waiver of inheritance, the parties can agree flexibly whether the waiver extends only to the free quota or also to the compulsory portion.
Example: A father from Basel agrees a waiver of inheritance with his daughter in return for a settlement of CHF 300,000. In the contract, they stipulate that she only waives the free quota but retains her compulsory portion. Neither disinheritance nor disinheritance offer this flexibility.
The waiver always concerns the entire inheritance – a partial waiver is not possible.
Legal consequences for the descendants
The effects on the offspring differ considerably.
- In the case of ineligibility to inherit, the descendants automatically take the place of the person ineligible to inherit, provided they are legal heirs.
- The same applies to disinheritance, unless the deceased person has expressly excluded this. In the case of waiver the legal situation is more complex. If a legal heir disclaims the inheritance, the situation is treated as if the heir had never experienced the inheritance. The descendants of this heir then have the option of accepting the inheritance within a period of three months.
- In the case of a waiver of inheritance, the effect on descendants depends on the contractual arrangement – without an express provision, the waiver also extends to them. If nothing else is stipulated, the renunciation of inheritance also applies to the descendants of the renouncing party.