{"id":74732,"date":"2024-08-13T07:05:00","date_gmt":"2024-08-13T05:05:00","guid":{"rendered":"https:\/\/www.deinadieu.ch\/ratgeber\/what-is-a-severability-clause\/"},"modified":"2026-02-10T13:19:50","modified_gmt":"2026-02-10T12:19:50","slug":"what-is-a-severability-clause","status":"publish","type":"ratgeber","link":"https:\/\/www.deinadieu.ch\/en\/advisor\/what-is-a-severability-clause\/","title":{"rendered":"What is a severability clause?"},"content":{"rendered":"\n

When writing a will, it can happen that errors creep in that render the will or individual provisions invalid or even void. The use of a so-called severability clause can provide a remedy. <\/p>\n\n\n\n

What is the severability clause?<\/h2>\n\n

The severability clause is an important legal provision in Swiss law. contract law. Its function is to, <\/strong> to maintain<\/strong> the validity of contracts<\/strong>, even if individual provisions are invalid or void. It is therefore also referred to as a “preservation clause”. The severability clause ensures that the document as a whole remains valid, even if individual provisions are not enforceable.<\/strong><\/p>\n\n

The Swiss Civil Code (ZGB) and Swiss inheritance law<\/strong> do not explicitly<\/strong> provide for such a severability clause<\/strong>. Instead, the validity of wills is protected by the principle of “favor testamenti”<\/g>. This states that a defective will should, if possible, be upheld. Nevertheless, a severability clause can be formulated in a similar way and used in a testamentary disposition or will. <\/p>\n\n

Why is the severability clause important?<\/h2>\n\n

A defective ruling is upheld and deemed valid if it can be supplemented or replaced by interpretation. However,<\/g> such an interpretation can lead to legal uncertainties and disputes<\/g>. To ensure that the wishes and the will of the testator are best followed, it may be advisable to include such a clause. <\/p>\n\n

The standard wording<\/strong> “Should one or more provisions of this will be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a provision that comes closest to the economic and legal purpose of the invalid provision.”<\/em> used.<\/p>\n\n

This clause also allows for some flexibility by providing that if a provision is invalid, a replacement provision that comes closest to the intended purpose of the original provision will take effect. However, depending on the circumstances, it is advisable to choose not just a standard wording, but an alternative wording tailored<\/g> to your case<\/g>. <\/p>\n\n

An example case<\/strong>: Hans M\u00fcller is widowed and has a daughter with whom he is in dispute. In his will, he therefore bequeaths his entire estate to his friend Albert. Due to the statutory compulsory portion to which his daughter is entitled, this provision would actually be invalid. However, if a severability clause is included in the will, as in the example above, a legally compliant solution is sought that most closely reflects his wishes. In this case, his daughter would probably receive the compulsory portion and Albert would receive the remainder (the available quota). <\/p>\n\n

Practical tips:<\/h3>\n\n

It is important to formulate<\/strong> the severability clause clearly and unambiguously<\/strong> so that its effectiveness can be guaranteed in the best possible way and the will or the disposition under inheritance law can be upheld.<\/p>\n\n

It is therefore advisable to consult a legal expert when drawing up wills or testamentary dispositions. In this way, you can ensure that your last will and testament is appropriate for your circumstances and concerns and that the legal requirements, including a severability clause, are met. <\/p>\n\n

Important: The severability clause must be clearly distinguished from the privatory clause<\/strong>. The privatory clause is used to “protect” the testamentary dispositions and to lend them emphasis. To this end, persons who contest the disposition are placed on the compulsory portion<\/g>. Or it is ordered that they even lose their status as heirs – depending on whether they are designated heirs or legal heirs. For example, a will could state: “Any legal heir who contests<\/g> this will by way of legal action<\/g> shall be reduced to the compulsory portion”. It is therefore also called a penalty clause<\/g> or forfeiture clause<\/g>. <\/p>\n\n

However, it should be noted that a privatory clause cannot protect immoral or unlawful instructions in a will. Here, too, you should therefore pay close attention to the wording<\/g> and, if necessary, consult a specialist lawyer. <\/p>\n\n

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