The compulsory portion under Swiss succession law
The compulsory portion ensures that a share of the estate cannot be revoked from certain heirs. Under Swiss succession law, the descendants (children, grandchildren), spouses, and parents are entitled to this protection. It can only be validly renounced by means of an inheritance contract.
What is the difference between share of inheritance and compulsory portion?
The compulsory portion is a part of the statutory share of inheritance.
If a testator wishes to bequeath money 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 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 a stipulated minimum that a legal heir cannot be denied.
The size of the compulsory portion varies in accordance with who is inheriting it. The part of the estate not protected by the compulsory portions, known as the divisible portion, is therefore dependent on a person's family structure.
Inheritance: Split into compulsory portion and divisible potion
If the testator was married, marital property law always takes precedence when determining the estate. The estate is only formed by what remains after deduction of the surviving spouse's claims on marital property.
How big is the compulsory portion in Switzerland and who is protected by it?
The compulsory portion in the Swiss Civil Code (SCC) is:
Descendants (children, grandchildren and great-grandchildren)
Three-quarters of the statutory share of inheritance
Spouse or registered partner
Half of the statutory share of inheritance
Half of the statutory share of inheritance each
1 Parents only inherit if the testator does not have children.
Grandchildren are only legal heirs if they inherit instead of their deceased parent. In that case they are also protected by the compulsory portion, as shown in the example below.
Inheritance: Compulsory portion for grandchildren if their parents die
Inheritance: No compulsory portion for siblings
What happens to the divisible portion?
A last will has to be drawn up to determine what happens to the divisible portion, which is the part of the estate that is not earmarked for compulsory portions. Any person or organization, such as a foundation or association, can be named as beneficiary of the divisible portion.
What are the consequences if compulsory portions 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
Agreement on renunciation of inheritance: Children from first marriage
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.
Wife is well provided for: Deed of variation with appointment of an heir
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.
Capital needed during lifetime: Inheritance renunciation contract
A son wishes to emigrate and receives CHF 100,000 from his father by concluding an inheritance contract. In the same inheritance contract, he renounces his claims to an inheritance from his father, including the compulsory portion.
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.