What is the function of Swiss law of succession?
75% of all Swiss people do not leave a will when they die. In this case, intestate succession applies, which determines which relatives receive which share of the estate. Intestate succession is therefore of great importance in Switzerland. In addition to these voluntary legal provisions that can be deviated from with a will or contract of succession, there are also mandatory provisions that must be respected, even if the testator has deviated from them in his or her will. They aim to ensure that heirs are treated fairly and appropriately. An example of this is statutory entitlement, which is explained in more detail below.
It is also of central importance to strictly separate the question of who inherits how much from that of who inherits what. Inheritance is first and foremost a claim to assets. This means that an heir has a right to a certain share of the estate. The division of the specific assets among the heirs is often an even more complicated undertaking than determining their purely value-based share.
Choose your heirs yourself – testamentary succession
Under the law of succession, there are binding rules that must always be respected. The rest is voluntary. You can therefore deviate from these voluntary provisions with a will. A testator who is of full age and has the capacity of judgement can decide for himself or herself what is to be done with his or her assets after his or her death, in accordance with the limits set by law. If the testamentary disposition (will or contract of succession) does not meet the requirements, it is generally still valid until it is successfully challenged by the beneficiaries.
Statutory entitlement must be respected
With regard to the assets to which the dependants are entitled, particularly the statutory entitlement is of great importance. These are calculated on the basis of intestate succession and are due to the heirs, provided there are no grounds for disinheritance. The descendants and the spouse/registered partner of the deceased receive a statutory entitlement of half of their statutory quota. Other relatives (e.g. the parents or siblings of the testator) are generally not entitled to a statutory entitlement.
Which parts are freely disposable?
The assets exceeding the statutory entitlement are referred to as the free quota and are subject solely to the will of the testator. Thus, on the one hand, the testator may appoint heirs, on the other hand, he or she may bequeath a legacy to selected persons. Legatees are not heirs and as such are not subject to any obligations regarding the inheritance.
Other inheritance options
The testator can also take contingencies into account and thus plan in advance: With an alternative disposition, he or she can designate substitute heirs who will receive the assets should the original beneficiaries not (be able to) accept the inheritance. In addition, he or she can appoint reversionary heirs and thus oblige an heir to pass on the inherited property to a person designated in advance by the testator at a fixed time or latest in the event of death.
By contract of succession (a written agreement between the testator and a third party), the testator may undertake to bequeath his or her estate or a legacy to another person (positive contract of succession) or may agree that the third party renounces any inheritance (inheritance buyout, negative contract of succession). This instrument is often used in the case of an inheritance advance, e.g. if a descendant wishes to invest his or her inheritance share in residential property while the testator is still alive.
Planning ahead can make inheritance easier
As family relationships nowadays are increasingly moving away from the classic model, the intestate inheritance regulations are also becoming less and less suited to the personal situation, wishes and needs of the parties involved. In order to ensure that an inheritance actually benefits the people you want it to benefit, you should draw up a will early on to prepare for the unexpected. Considering that legal regulations are not always clear (which is also why they were only explained above in principle), getting professional legal advice is recommended. In so doing, you can avoid conflicts with mandatory statutory law and thus your testamentary disposition being challengeable.
What happens if I do not write a will?
Then the law of succession enters into force – intestate succession. According to the law, it is only spouses, registered partners and blood relatives who are part of the circle of heirs. If you wish to make an inheritance or bequeath a legacy to other persons, you must state this explicitly in a will. The shares to which the dependants are entitled are assessed according to the family situation of the testator: For this purpose, the Swiss Civil Code divides the blood-related heirs in parental lines (so-called parentela): The first parentela and thus the next heirs are the children of the testator, the second parentela are the parents and the third parentela the grandparents. This alignment continues through their descendants in a straight line.
The parentelas have an exclusionary effect on each other. This means that the second (third) parentela only inherits when there are no heirs of the first (second) parentela to be considered. Predeceased blood relatives are replaced by their descendants in equal distribution. If no relatives from the third parentela are known or if they all disclaim the inheritance, the deceased leaves no heirs and his or her estate passes to the community in which he or she was last resident in accordance with the law of the canton.
A simple example to illustrate
The testator Alfred was widowed, had a predeceased son who has two children and leaves behind a daughter. Since there are descendants, their line inherits and not the parental or grandparental line (i.e. Alfred’s parents, grandparents, siblings and cousins). The children each inherit equal shares: The daughter receives half of the inheritance, the predeceased son’s half is divided equally among his children (i.e. Alfred’s grandchildren), so that each grandchild is entitled to a quarter of the estate.
The division of the estate is more complicated if the deceased also leaves a spouse or registered partner. In this case, the marital property must be divided at the time of death in order to be able to segregate the deceased person’s estate. If the estates have been segregated, the surviving partner’s entitlement to inheritance depends on the degree of relationship of his or her co-heirs: With (joint) children he or she has to share half of the estate; heirs of the second (parental) parentela are jointly entitled to a quarter of the testator’s assets. More distant relatives (grandparents, third parentela) have no claim.
The childless testator Lukas leaves behind his wife and his mother. He has two surviving brothers and his father is predeceased. After the marital property division, Lukas’ estate is divided as follows: Since there are no descendants, the parental line (second parentela) is entitled to inherit along with his wife. In this case, the wife is entitled to three quarters of the inheritance. The mother and father each inherit half of the remaining quarter, so that one eighth belongs to the mother. The eighth of the predeceased father is again divided between the two brothers of Luke, so that each receives a sixteenth.
Statutory succession is a frequently used instrument for clarifying inheritance claims if the testator has not disposed of his or her assets. Because it rarely corresponds to the will of the testator, everyone should express their wishes within the scope of what is legally possible. In this way, conflicts over the division of inheritance can be better avoided.
Something to think about:
- Are you happy with intestate succession? Or would you rather set out your own line of succession in a will?
- To whom do you want to leave your free quota? Does it make sense to combine the contract of succession with a marital agreement?
- Do you have certain assets or items for whom you would like to designate revisionary heirs?
- Where circumstances require, it may be useful to designate a substitute heir.
More articles on the topic:
- Will – requirements on form and content
- Legacy – an alternative to status as heir
- An inheritance advance – a special form of gift
- Statutory entitlement in law of succession
- Substitute heirs
- Designating preliminary heirs and reversionary heirs
- Contractual options in the law of succession and marriage law