The compulsory portion under Swiss succession law
The compulsory portion under Swiss succession law ensures that certain heirs cannot be deprived of a share of the estate. This treatise on Swiss succession law explains which heirs are protected with a compulsory portion and what leeway the testator has in his or her own estate planning.
- Inheritance law in Switzerland
- The compulsory portion and its meaning
- Compulsory portion percentages under Swiss succession law
- What happens to the divisible portion
- Consequences of violating the compulsory portion
- Superseding the compulsory portion with an inheritance contract
- Circumventing compulsory portions – virtually impossible
What does the compulsory portion under succession law mean?
The compulsory portion is a part of the statutory share of inheritance. It ensures that certain family members receive a minimum share of your estate. Under Swiss succession law, this protection is given to the following heirs: descendants such as children, grandchildren, and great-grandchildren, as well as spouses or registered partners.
If a testator wishes to leave an inheritance to someone other than the legal heirs or, for example, favor one of the heirs over another, then they have the option of drawing up a last will to appoint further heirs and/or stipulate other shares of inheritance. However, the testator is still restricted with regard to the shares of inheritance of heirs who are entitled to a compulsory portion. These shares of inheritance can only be reduced to the compulsory portion.
The compulsory portion is therefore the stipulated minimum share of the inheritance that a legal heir cannot be denied. If there are heirs who are entitled to a compulsory portion, the divisible portion comprises half of the estate. Conversely, single people with no descendants can dispose freely of their entire estate.
Inheritance: Split into compulsory portion and divisible portion
Example: A testator leaves behind a wife and children
Unless otherwise specified, the children and the wife each receive half of the estate. This is the statutory share of inheritance. In turn, half of these shares of inheritance is protected by the compulsory portion.
Shares representing compulsory portions under Swiss succession law
Under the Swiss Civil Code (SCC), the following individuals will receive specific compulsory portions:
- Descendants (children, grandchildren, great-grandchildren): half of the statutory share of inheritance (until the end of 2022, the compulsory portion was three-quarters).
- Spouses or registered partners: half of the statutory share of inheritance.
The statutory compulsory portions amount to a maximum of half of the entire estate. The other 50% represents the divisible portion.
Under the revised succession law, parents are no longer entitled to a compulsory portion. Until the end of 2022, the compulsory portion of parents was one-half of their statutory share of inheritance. Under the new succession law, parents therefore now only inherit according to the legal order of succession, in other words, if the testator does not have any descendants and has not made any other provisions for the divisible portion by means of a last will or inheritance contract.
Compulsory portion for grandchildren if their parents are predeceased
Grandchildren are only legal heirs if they inherit instead of their predeceased parent. In that case, they are also protected by the compulsory portion, as the example below shows.
Example: Spouse, children, and grandchildren are protected by the compulsory portion
In this case, since two of the testator's three children are already deceased, the predeceased children's claim to an inheritance is passed on to their children. As legal heirs, these grandchildren are also protected by the compulsory portion for one-half of the share of inheritance.
Inheritance: No compulsory portion for siblings
Siblings of the deceased are part of the legal order of succession but they are not protected by the compulsory portion.
Example: Siblings and their descendants are not protected by the compulsory portion
The legal heirs of a married person without descendants are the spouse, the surviving parent, and the siblings or their descendants (nieces/nephews). In this example, only the spouse is protected by the compulsory portion. It would therefore have been possible for the deceased to fully exclude his remaining parent, his siblings, and their descendants from the inheritance by means of a last will.
What happens to the divisible portion under Swiss succession law?
A last will or inheritance contract has to be drawn up to determine what happens to the portion that is not protected by compulsory portions, i.e. the divisible portion. Any person or organization, such as a foundation or association, can be named as beneficiary of the divisible portion.
Single persons with no descendants can freely dispose of their entire estate.
What are the consequences if compulsory portions stipulated under succession law are violated?
Heirs who believe that their compulsory portion has been violated by the testator must take the initiative themselves.
Action in abatement, for example, must take place within a year of the heir finding out about the death of the testator. In some situations, there is a one-month time limit for preventing the certificate of heirship from being issued.
The following are the most common reasons for actions in abatement:
- Violation of the compulsory portion in the last will or in an inheritance contract without the agreement of the heir concerned.
- The testator made large gifts or advancements while still alive. This is the case especially if they were made in the last five years before death or if the testator could freely revoke the gifts.
- Life insurance claims benefiting third parties can also violate the compulsory portions of heirs.
Can compulsory portions be revoked?
An inheritance contract allows a testator, together with the future heirs, to regulate the estate differently than is stipulated by law. The heirs can partially or fully renounce their claims to an inheritance, even if the law grants them compulsory portion protection. It is advisable to plan carefully, together with all the parties involved.
Unlike the last will, an inheritance contract can only be changed or canceled with the agreement of the contracting parties. An inheritance contract therefore has to be carefully worded and requires a public official and two witnesses in order to be legally binding.
Examples of renunciation of inheritance and compulsory portion
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Agreement on renunciation of inheritance: Children from first marriage
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Spouses who are married to each other in a second marriage mutually renounce their inheritance right, including the compulsory portion; each spouse's descendants from the first marriage are usually the beneficiaries.
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Wife is well provided for: Deed of variation with appointment of an heir
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A businessman names his only daughter, who is following in his business footsteps, as his sole heir. His wife renounces her compulsory portion because she is already well provided for by claims on marital property and life insurance.
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Capital needed during lifetime: Inheritance renunciation contract
Compulsory portions under Swiss succession law are virtually impossible to circumvent
Perhaps Swiss succession law, which protects a testator's next-of-kin by means of the compulsory portion, is one of the reasons why Swiss family drama movies seem somewhat tamer than their Hollywood counterparts.
Whereas an American movie dad can cut his renegade sons or non-conforming daughters out of his will with the stroke of a pen, the Swiss movie dad cannot take such extreme measures to get his children back on track.
Under Swiss succession law, disinheritance as a result of conflict or antipathy is not valid. It is only possible under exceptional circumstances, such as due to a serious criminal offense against the testator or one of their relatives.
The Swiss movie dad is left with no other option than to grant his children the compulsory portion, which is, of course, far too mundane for a movie drama.
