Inheritance law in Switzerland

Last updated January 18, 2024

In Swiss law, inheritance law is that part of private law under which the rights and obligations of a deceased person pass to one or more natural or juridical persons. As most of these rights and obligations are pecuniary in nature, the main purpose of inheritance law is to regulate the fate of a person's assets on death. Inheritance law in Switzerland is governed by the Swiss Civil Code (articles 457 to 640).^[1]

History

The first traces of inheritance law in Switzerland date back to the 11th century.^[2]

Inheritance rights

Inheritance rights designate, on the one hand, who is to receive the de cujus' estate and, on the other hand, how much the inheritance share amounts to.

Kinship system

Swiss law is organized around the kinship system. There are three of them:

descendants (art. 457 CC);
parents and their descendants (art. 458 CC); and,
grandparents and their descendants (art. 459 CC).

The presence of an heir in the first kinship excludes the vocation of members of the second kinship. The absence of an heir in the first kinship and the presence of an heir in the second kinship exclude the vocation of members of the third kinship. Swiss law does not go beyond three kin. Thus, in the absence of heirs in these three kin and of a surviving spouse, the estate devolves to the State (canton of the deceased's last domicile or commune designated by cantonal legislation; art. 466 CC).

Within a kinship, division is by head (art. 457 para. 2, 458 para. 2 and 459 para. 2 CC).

From the second kinship onwards, if there is no heir in one of the paternal or maternal lines (art. 458 al. 4 CC) -- or in the grandparents' lines (art. 459 al. 4 CC) -- the entire estate falls to the line in which there are heirs.

Surviving partner

The surviving partner has a special place, in competition with the various relatives (art. 462 CC). In competition with descendants, he/she is entitled to half the estate (art. 462 ch. 1 CC), with parents to three quarters (art. 462 ch. 2 CC). In the absence of heirs of the second kin, he/she is entitled to the entire estate (art. 462 ch. 3 CC), thus excluding the vocation of members of the third kin.

Intestate and voluntary heir

The ab intestat vocation is the succession vocation in the absence of a will (etymology of ab intestat).

Swiss law recognizes the de cujus's power to designate persons other than his intestate heirs to succeed him, whether or not in concurrence with them. These are known as instituted heirs (art. 483 CC). This is a voluntary vocation (dependent on the will of the deceased). The institution of heirs is effected by means of a disposition mortis causa (in a will or an inheritance agreement).

Compulsory heir (reserve and available portion)

Because of specific ties with the deceased (close family ties), certain heirs have a more specific right to inherit. This is known as the compulsory heir. Inheritance law grants them a share of the estate that the deceased cannot dispose of.

The corollary of the reserve is the available portion (art. 470 CC). This is the portion of the estate which the deceased is free to distribute.

Since January 1, 2023,^[3] the reserve is half of the inheritance tax (art. 471 CC).

Reserved heirs include descendants and the surviving spouse (art. 470). The revision of inheritance law which came into force on January 1, 2023^[4] abolished the reserved right of parents.

Share of inheritance

All heirs share equally in the estate of the deceased. Thus, children succeed per head (art. 457 para. 2 CC).

In the absence of a disposition mortis causa, several situations can be distinguished:

The cujus leaves only children: they share the estate equally. E.g.: two children: each receives half.
The cujus leaves a surviving spouse and children: the surviving spouse is entitled to half the estate (art. 462 ch. 1 CC), the children share the other half equally.
The cujus leaves father and mother: each shares half the estate.
The cujus leaves a surviving spouse and his or her father and mother: the surviving spouse is entitled to three quarters of the estate (art. 462 ch. 2 CC), the father and mother share the remaining quarter equally (i.e. one eighth of the estate each).
etc.

These principles also apply when the deceased has disposed of all or part of his estate by reason of death. Intestate vocation always applies subsidiarily to voluntary vocation, insofar as it respects reservatory vocation.

Assets of the estate

A distinction is made between:

The estate to be divided: all the property owned by the deceased at the time of his death, to be shared by the heirs according to the will of the deceased, and subsidiarily according to the law.
The mass for calculating the reserves and the available portion: to take account of certain gifts made by the de cujus shortly before his death which could prejudice the reserves of the heirs with the right to reserve, inheritance law prescribes that these gifts be added to the mass to be shared. This is known as reunification. If it turns out that the reserves have been prejudiced, the heirs with the right to reduce the amount (art. 522 CC).

Related Research Articles

Primogeniture is the right, by law or custom, of the firstborn legitimate child to inherit the parent's entire or main estate in preference to shared inheritance among all or some children, any illegitimate child or any collateral relative. In most contexts, it means the inheritance of the firstborn son ; it can also mean by the firstborn daughter, or firstborn child.

<span class="mw-page-title-main">Intestacy</span> Dying without leaving a will

Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estate; the remaining estate forms the "intestate estate". Intestacy law, also referred to as the law of descent and distribution, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance.

In civil law and Roman law, the legitime, also known as a forced share or legal right share, of a decedent's estate is that portion of the estate from which he cannot disinherit his children, or his parents, without sufficient legal cause. The word comes from French héritier légitime, meaning "rightful heir."

Per stirpes is a legal term from Latin, used in the law of inheritance and estates. An estate of a decedent is distributed per stirpes if each branch of the family is to receive an equal share of an estate. When an heir in the first generation of a branch predeceased the decedent, the share that would have been given to that heir would be distributed among that heir's issue in equal shares. It may also be known as strict per stirpes or the old English approach, and differs from distribution per capita, as members of the same generation may inherit different amounts. In section 33 of the Wills Act 1837 in England and Wales, it is called according to their stock.

Usufruct is a limited real right found in civil-law and mixed jurisdictions that unites the two property interests of usus and fructus:

<span class="mw-page-title-main">Probate</span> Proving of a will

In common law jurisdictions, probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the state of residence of the deceased at time of death in the absence of a legal will.

A person's next of kin (NOK) may be that person's spouse, adopted family member or closest living blood relative. Some countries, such as the United States, have a legal definition of "next of kin". In other countries, such as the United Kingdom, "next of kin" may have no legal definition and may not necessarily refer to blood relatives at all.

<span class="mw-page-title-main">Pretermitted heir</span> Concept in property law

In the law of property, a pretermitted heir is a person who would likely stand to inherit under a will, except that the testator did not include the person in the testator's will. Omission may occur because the testator did not know of the omitted person at the time the will was written.

In English law, heirs of the body is the principle that certain types of property pass to a descendant of the original holder, recipient or grantee according to a fixed order of kinship. Upon the death of the grantee, a designated inheritance such as a parcel of land, a peerage, or a monarchy, passes automatically to that living, legitimate, natural descendant of the grantee who is most senior in descent according to primogeniture, males being preferred, however, over their sisters regardless of relative age; and thereafter the property continues to pass to subsequent descendants of the grantee, according to the same formula, upon the death of each subsequent heir.

Hereditary titles, in a general sense, are nobility titles, positions or styles that are hereditary and thus tend or are bound to remain in particular families.

<span class="mw-page-title-main">Forced heirship</span> Form of testate partible inheritance

Forced heirship is a form of testate partible inheritance which mandates how the deceased's estate is to be disposed and which tends to guarantee an inheritance for family of the deceased.

International tax law distinguishes between an estate tax and an inheritance tax. An inheritance tax is a tax paid by a person who inherits money or property of a person who has died, whereas an estate tax is a levy on the estate of a person who has died. However, this distinction is not always observed; for example, the UK's "inheritance tax" is a tax on the assets of the deceased, and strictly speaking is therefore an estate tax.

In inheritance, a hereditary successor is a person who inherits an indivisible title or office after the death of the previous title holder. The hereditary line of succession may be limited to heirs of the body, or may pass also to collateral lines, in case of extinction of heirs of the body, depending on the succession rules. These concepts are in use in English inheritance law.

Islamic Inheritance jurisprudence is a field of Islamic jurisprudence that deals with inheritance, a topic that is prominently dealt with in the Qur'an. It is often called Mīrāth, and its branch of Islamic law is technically known as ʿilm al-farāʾiḍ.

<span class="mw-page-title-main">Laughing heir</span>

In the law of inheritance, a laughing heir is an heir who is legally entitled to inherit the property of a person who has died, even though that heir is only distantly related to the deceased, and therefore has no personal connection or reason to feel bereaved over the death.

Inheritance law in Canada is constitutionally a provincial matter. Therefore, the laws governing inheritance in Canada is legislated by each individual province.

The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.

Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another was an important case in South African customary law.

The Custom of Paris was one of France's regional custumals of civil law. It was the law of the land in Paris and the surrounding region in the 16th–18th centuries and was applied to French overseas colonies, including New France. First written in 1507 and revised in 1580 and 1605, the Custom of Paris was a compilation and systematization of Renaissance-era customary law. Divided into 16 sections, it contained 362 articles concerning family and inheritance, property, and debt recovery. It was the main source of law in New France from the earliest settlement, but other provincial customs were sometimes invoked in the early period.

Intestate succession in South African law takes place whenever the deceased leaves property which has not been disposed of by valid testamentary instrument. In other words, the law of intestate succession applies only:

References

↑ Swiss Civil Code (CC) of December 10, 1907 (status January 1, 2020), RS 210, art. 457 to 640.
↑ This article incorporates public domain material from websites or documents of the United States Department of Homeland Security .
↑ "RO 2021 312".
↑ "Décision du Conseil fédéral du 10 juin 2022".

Bibliography

Paul Piotet, Droit successoral, Traité de droit privé suisse, T. IV, Fribourg, Éditions universitaire, 1975 (2nd ed. en 1988 with a few minor modifications).
Steinauer, Paul-Henri (2015) [2006]. Le droit des successions (in French). Berne: Stämpfli. ISBN 978-3-7272-0728-0.
Stefan Wolf/Stephanie Hrubesch-Millauer, Schweizerisches Erbrecht, Berne, Stämpfli, 2020, 2^e éd., 688 p.

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[1] Swiss Civil Code (CC) of December 10, 1907 (status January 1, 2020), RS 210, art. 457 to 640.

[2] This article incorporates public domain material from websites or documents of the United States Department of Homeland Security .

[3] "RO 2021 312".

[4] "Décision du Conseil fédéral du 10 juin 2022".

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