What are the statutory shares of my children? Are there alternatives?

The descendants of every testator are entitled to a statutory entitlement, which in principle may not be withdrawn from them. In this text we explain what this means for your will and what alternative solutions there are.

Inheritance quotas and statutory shares of descendants

Swiss family and inheritance law is based on the presumption that the closest family relationship is between parents and their children. This chain can be continued as far as desired through grandparents, great-grandparents, grandchildren, great-grandchildren, etc. – one speaks of ancestors or descendants in a straight line. It therefore stands to reason that the descendants, as next living relatives (first parentela), are also involved in an inheritance.

On the basis of this presumption, the descendants do not only have a legal share of the inheritance if the testatrix does not decree otherwise. They also benefit from a particularly protected inheritance-law claim, the so-called statutory entitlement. This can only be withdrawn from them in exceptional cases under certain conditions.

Until 01 January 2023, the statutory share of the descendants amounts to three quarters of their statutory inheritance entitlement. With the Revised Law of Succession, which will come into force at the beginning of 2023, their statutory share will be reduced to half of the statutory inheritance entitlement. Accordingly, the so-called ‘available quota’ increases. This gives testators greater leeway in deciding who should inherit how much from their estate. They can use this by drawing up a disposition of death, i.e. a will (testamentary disposition) or a contract of inheritance with provisions on the distribution of the inheritance. This can easily stipulate that the heirs to the statutory share receive more or less than their statutory share of the inheritance. Only the statutory share may in principle not be undercut or withdrawn – for exceptions see below.

The legal entitlement to inheritance cannot be quantified in general, because it depends on the number of co-heirs. Also, the statutory share does not include a claim to certain assets. It always refers to a share of the total value of the estate at the time of the testator’s death. As a rule of thumb, the more co-heirs, the smaller the legal share of the inheritance and thus also the statutory share.

An example to illustrate the point

The deceased, Antonia, is widowed and has estate assets totalling CHF 1 million. Her only heirs are daughter Bianca and son Claudio. Without a testamentary disposition, each of the two children inherits CHF 500,000.

Under the old legal situation (until the end of 2022), the statutory shares amount to CHF 500,000 * ¾ = 375,000 each. Under the new law (from 2023) they are reduced to CHF 250,000 per child. The available quota thus increases from CHF 250,000 to CHF 500,000.

Let us now consider another variant in which son Claudio is predeceased and his children Daniela and Ernesto, Antonia’s grandchildren, take up the inheritance instead of him:

In this constellation, Bianca receives CHF 500,000, Daniela and Ernesto each receive half of Claudio’s inheritance share, i.e. CHF 250,000. The statutory shares under the old law amount to CHF 375,000 for Bianca and CHF 187,500 each for Daniela and Ernesto. Under the new law, they are reduced to CHF 250,000 for Bianca and CHF 125,000 for Daniela and Ernesto.

What is the consequence if the statutory shares are unjustifiably undercut or withdrawn? First of all: nothing at all.

This is because a breach of the statutory share must be asserted by the heirs whose statutory shares have been breached by means of the so-called action for reduction. This is only possible after the opening of the inheritance. The action for reduction is an action under the law of succession with the aim of restoring or filling up the statutory shares. For this purpose, the beneficiaries of those heirs and legatees who receive ‘too much’ are reduced proportionately. A breach of the statutory share can occur not only through a disposition upon death, but also through lifetime gifts such as gifts, advance inheritance, settlements or buy-out amounts. These are also contestable with the action for reduction.

However, there are also cases in which individual heirs do not receive a statutory share and cannot bring an action for reduction against it. We briefly present the most important cases. These are the renunciation of inheritance, the purchase of inheritance as well as disinheritance and unworthiness to inherit.

Consensual waiver of the statutory entitlement

One possibility to get rid of the obligation-related restriction of the freedom of disposal is the conclusion of a waiver of inheritance contract (also ‘negative inheritance contract’). In this process, the testator and heirs agree that all or part of the inheritance claim is to be waived. The waiver of inheritance contract is subject to special formal requirements. According to these, it must be publicly notarised in the presence of the contracting parties and two witnesses. As a multilateral legal transaction, an inheritance contract, once concluded, is binding on all parties and can in principle only be cancelled or amended with their consent.

Gratuitous waiver of inheritance contract

The waiver of inheritance contract is gratuitous in its basic form. This means that an heir to a statutory share waives claims under inheritance law, in particular the statutory share, without consideration. The renunciation of inheritance is binding, so that later developments in the testator’s assets do not affect its validity. This means that the renunciation remains in force even if more assets are found in the estate than was expected at the time of the renunciation of the inheritance.

It is not only possible to renounce the entire statutory entitlement, but also only a part of it. It is also possible to attach conditions to the renunciation of the inheritance, for example that a certain other person receives a claim to the inheritance share instead. If certain heirs are appointed in the contract of inheritance instead of the renouncing person, the renunciation lapses if they do not acquire the inheritance.

An heiress who has validly waived her claims shall be disregarded in the succession. The renouncing person is therefore treated as if he or she did not experience the inheritance. If nothing to the contrary is stipulated in the contract of renunciation of inheritance, the renunciation shall also apply to the descendants of the renouncing person. This means that they do not succeed and also have no claims to the inheritance.

Purchase of an inheritance against payment

In addition to the gratuitous renunciation of the inheritance, the law also provides for the purchase of an inheritance. In the case of the purchase of an inheritance, the renunciation is linked to a consideration by the testator. Such consideration or settlement may be promised or made during life or on death.

The consideration does not necessarily have to correspond in its extent to the value that is waived. It can be of lesser value, but also of greater value. It cannot, however, be infinitely large, because lifetime gifts in the form of severance payments or buy-out contracts are also added to the estate. If they infringe the statutory shares of other heirs, they are subject to the action for reduction described above.

An inheritance purchase is a particularly advisable solution if descendants need a larger sum of money but a gift is not considered expedient. Typical cases of application are the intended independence of an adult child, the purchase of a condominium or the construction of a home.

Let’s look again at the example from above:

The testator Antonia concludes a valid inheritance purchase contract with her son Claudio. This states that Claudio will immediately receive CHF 300,000 in cash in exchange for waiving all claims under inheritance law, including his statutory share.

In this case, Claudio (and also his children Daniela and Ernesto) is eliminated as heir and his sister Bianca receives the entire estate as sole heir upon Antonia’s death. If there is no change in the asset situation, this is still CHF 700,000. Claudio and his children cannot claim a breach of the statutory entitlement.

Unilateral withdrawal of the statutory entitlement

Under certain conditions, it is possible for testators to unilaterally deprive their descendants of the statutory share. Then the available quota increases by that share of the inheritance that was withdrawn from the heirs.

This is to be distinguished from disclaimer, in which (statutory share) heirs of their own will renounce a share of the inheritance to which they would be entitled. The disclaimer is typically chosen if there are more debts than assets in the estate, i.e. the testator is overindebted.

Disinheritance

One way of withdrawing the statutory share involves disinheritance. In the case of a valid disinheritance, the share of the disinherited person falls to the legal heirs, as if the disinherited person had not lived to see the inheritance, unless the testator decrees otherwise.

Disinheritance is sometimes threatened by parents as a consequence for misbehaving children. However, it must not be forgotten that the law only allows disinheritance under certain strict conditions. A distinction is made between punitive inheritance, which is more relevant in practice, and preventive inheritance, which is less common.

From a formal point of view, a disposition of death is always required in which the reason for the disinheritance is stated. If no reason is given or if it is not admissible, the invalid disinheritance is treated in the same way as a statutory entitlement. This means that the disinherited person still receives their statutory entitlement, but no more.

The law restricts the factual grounds for criminal disinheritance to two facts. Firstly, this is a serious criminal offence committed by the disinherited person against the testator or against a person closely connected to the testator. On the other hand, a serious violation of family law obligations towards the testator or her relatives is also a possible ground for disinheritance.

The preventive inheritance is directed against over-indebted descendants. It serves the purpose of preserving the assets of the testator. Accordingly, it is intended to prevent the inherited assets from going directly to creditors of the over-indebted descendants.

A disinheritance can be revoked by the testator during her lifetime by deleting the relevant passage in the testamentary disposition or by revoking the entire disposition.

Let’s look at the example from above one last time

The testator Antonia leaves a will in which she disinherits her son Claudio ‘because he never took care of his dementia-stricken father’.

Antonia has disinherited her son due to a serious violation of family law obligations. Claudio is therefore disqualified as heir and cannot claim any statutory entitlement. Antonia’s estate is divided between daughter Bianca and grandchildren Daniela and Ernesto.

If the justification is not sufficient or does not correspond to the facts, Claudio could at least demand his statutory entitlement. The rest of the estate would again be divided between Bianca, Daniela and Ernesto.

Ineligibility to inherit

Ineligibility to inherit is another way in which descendants – or other heirs – can lose their entitlement to a statutory entitlement. This is a kind of ‘statutory fall-back solution’ for cases in which the testator is not (any longer) able to decree a valid disinheritance. At the same time, it is assumed that, based on the factual situation, it would be in his will that the person unworthy of inheritance should not participate in the inheritance. The unworthiness to inherit applies only to the person unworthy to inherit himself. She is treated as pre-deceased and her descendants succeed her.

Grounds for unworthiness to inherit:

  • the intentional, attempted or executed killing of the deceased,
  • the intentional bringing about of a state of incapacity in the testator,
  • the manipulation of a disposition of property upon death by malice, duress or threat; and
  • the intentional and irretrievable removal or destruction of a disposition of property upon death.

Like disinheritance, unworthiness to inherit can also be reversed. This is done informally by pardoning the testator.

The most important facts at a glance

  • Descendants are considered the closest family members. They are therefore legal heirs with a particularly protected statutory share. The statutory share amounts to three quarters of the statutory inheritance entitlement until 2022, from 2023 only half of it. This statutory share can be violated by lifetime gifts or dispositions by reason of death. Then heirs to the statutory share can use the action for reduction to achieve restoration.
  • One possibility to eliminate statutory shares by mutual agreement is to conclude a waiver of inheritance contract. This may be for a fee or free of charge and may be subject to conditions. The renunciation of inheritance against payment is also called inheritance purchase or inheritance settlement.
  • Against the will of the heirs to the statutory shares, the statutory share can be withdrawn by disinheritance or unworthiness to inherit. This requires qualified fault on the part of the heirs to the statutory entitlement. Disinheritance or unworthiness to inherit is never ‘groundless’, but it can always be revoked by the testator.

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