The descendants of every testator are entitled to a statutory entitlement, which in principle may not be withdrawn from them.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.<\/p>\n\n\n\n
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. \u2013 one speaks of ancestors or descendants in a straight line. It therefore stands to reason that the descendants, as next living relatives (first parentela<\/a>), are also involved in an inheritance.<\/p>\n\n On the basis of this presumption, the descendants do not only have a legal share of the inheritance<\/a> if the testatrix does not decree otherwise. They also benefit from a particularly protected inheritance-law claim<\/strong>, the so-called statutory entitlement<\/a>. This can only be withdrawn from them in exceptional cases under certain conditions.<\/p>\n\n Since the revision of the inheritance law from January 2023, the statutory share of the descendants amounts to half of their statutory inheritance entitlement.<\/strong> The testator(s) can use this tolerance by drawing up a testamentary disposition<\/a> or an inheritance contract<\/a> containing 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 Only the statutory share may in principle not be undercut or withdrawn \u2013 for exceptions see below.<\/p>\n\n The legal entitlement to inheritance cannot be quantified in general, because it depends on the number of co-heirs<\/a>. Also, the statutory share does not include a claim to certain assets.<\/strong> It always refers to a share of the total value of the estate<\/strong> at the time of the testator\u2019s death. As a rule of thumb, the more co-heirs, the smaller the legal share of the inheritance and thus also the statutory share.<\/strong><\/p>\n\n 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.<\/em><\/p>\n\n The statutory shares amount to CHF 500,000 each * \u00bd<\/em> = 250,000. The available quota thus amounts to CHF 500,000.<\/em><\/p>\n\n Let us now consider another variant in which son Claudio is predeceased and his children Daniela and Ernesto, Antonia\u2019s grandchildren, take up the inheritance instead of him:<\/p>\n\n In this constellation, Bianca receives CHF 500,000, Daniela and Ernesto each receive half of Claudio’s inheritance share, i.e. CHF 250,000 each. The statutory shares for Bianca amounts to CHF 250,000, and CHF 125,000 each for Daniela and Ernesto.<\/em><\/em><\/p>\n\n What is the consequence if the statutory shares are unjustifiably undercut or withdrawn? First of all: nothing<\/a> at all.<\/p>\n\n 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<\/a>. This is only possible after the opening of the inheritance<\/a>. The action for reduction is an action under the law of succession with the aim of restoring or filling up the statutory shares<\/a>. For this purpose, the beneficiaries of those heirs and legatees who receive \u2018too much\u2019 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<\/a>, advance inheritance<\/a>, settlements<\/a> or buy-out amounts. These are also contestable<\/a> with the action for reduction.<\/p>\n\n 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<\/a>.<\/p>\n\n One possibility to get rid of the obligation-related restriction of the freedom of disposal<\/a> is the conclusion of a waiver of inheritance contract<\/a> (also \u2018negative inheritance contract<\/a>\u2019). 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<\/a>. According to these, it must be publicly notarised<\/a> 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.<\/p>\n\n 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<\/a> is binding, so that later developments in the testator\u2019s 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.<\/p>\n\n It is not only possible to renounce the entire statutory entitlement, but also only a part of it.<\/strong> It is also possible to attach conditions<\/a> to the renunciation of the inheritance, for example that a certain other person receives a claim to the inheritance share instead<\/a>. 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.<\/p>\n\n 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.<\/p>\n\n In addition to the gratuitous renunciation of the inheritance, the law also provides for the purchase of an inheritance<\/a>. In the case of the purchase of an inheritance, the renunciation is linked to a consideration by the testator.<\/strong> Such consideration or settlement may be promised or made during life or on death.<\/p>\n\n 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.<\/p>\n\n An inheritance purchase is a particularly advisable solution<\/a> if descendants need a larger sum of money<\/strong> but a gift<\/a> 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.<\/p>\n\n 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.<\/em><\/p>\n\n 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\u2019s 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.<\/em><\/p>\n\n 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.<\/p>\n\n 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<\/a>.<\/p>\n\nAn example<\/strong> to illustrate the point<\/h3>\n\n
Consensual waiver of the statutory entitlement<\/h2>\n\n
Gratuitous waiver of inheritance contract<\/h3>\n\n
Purchase of an inheritance against payment<\/h3>\n\n
Let\u2019s look again at the example from above:<\/h3>\n\n
Unilateral withdrawal of the statutory entitlement<\/h2>\n\n
Disinheritance<\/h2>\n\n