Switzerland: Revision Of The International Succession Law

On 22 December 2023, the Swiss Parliament finally passed the revised version of the Private International Law Act (nPILA), after being the subject of an in-depth debate for almost ten years, revolving around harmonisation and modernisation of Swiss succession law.

The main goals of this amendment to the law are: i) to avoid conflicting rulings on international successions, by partially harmonising Swiss law with the relevant European regulation (EU Regulation no 650/2012 on Succession law, that came into force in 2015); and ii) to provide the necessary clarifications required by recent case law and legal doctrine. These new provisions also give citizens a little more autonomy in planning their inheritance.

Key changes affect jurisdiction and applicable law. On these two subjects, after a brief reminder of current law, we will further discuss a few of the important amendments made.

Jurisdiction

Coexistence of PILA law and other regulations can give rise to issues regarding jurisdiction, even in a simple case, for example where a deceased person had ties with at least two jurisdictions, having had their last residence set in one jurisdiction, and their real estate situated in another. In certain instances, two states would therefore separately declare having jurisdiction to deal with the estate, causing a positive conflict of jurisdiction to arise.

Switzerland’s Jurisdiction Toned Down To Avoid Positive Conflict

Current law gives jurisdiction to Switzerland to deal with an estate when 'foreign authorities' fail to do so. It is unclear whether it is sufficient for the competent authority of the deceased's last domicile not to deal with the succession, or whether it is necessary for other authorities, that might be recognised from a Swiss point of view, not to deal with it.

The new provisions of PILA resolve this difficulty: if a Swiss deceased's last residence was situated abroad, the Swiss authorities of the deceased's place of origin will now only have subsidiary jurisdiction to intervene, in the event that the state of last residence fails to deal with the succession (Article 87 §1 nPILA). The same principle applies where assets located in Switzerland are part of the estate of a deceased foreign citizen whose last residence was abroad (Article 88 §1 nPILA), between the Swiss authorities of the location of assets and a foreign State handling the estate.

Per these articles, Switzerland may also decline jurisdiction, thus reducing the risk of positive jurisdictional conflict in cases where the state i) of last residence, ii) in which isolated succession assets are located, or iii) of nationality of the deceased handle the succession.

Decoupling Swiss Applicable Law And Swiss Jurisdiction

Currently, when a Swiss national residing abroad chooses Swiss law to govern their estate, the Swiss authorities are automatically competent to deal with their entire estate. The revision (Article 87 §1 nPILA) offers those who wish to subject their succession to Swiss law the possibility of making a reservation in favour of the jurisdiction of another state by Will or inheritance agreement (by simply “opting-out”).

Exclusion Of Swiss Jurisdiction

At present, foreign nationals whose last residence is in Switzerland cannot choose the jurisdiction of their own national state. To ensure equal treatment with Swiss nationals residing abroad, Article 88b §1 nPILA will allow a foreign citizen whose last place of residence is in Switzerland, and who chooses their foreign state to govern the estate, to explicitly declare that the authorities of that state have jurisdiction, thus excluding Swiss jurisdiction.

Persons with foreign nationality will be able to benefit from a possible claim to jurisdiction by their own national state, by submitting to the authorities of that state the assets located there, or even their entire estate, should they hold this nationality when their Will is drawn or at the time of death.

Swiss nationals, like foreign nationals, will also be able to submit foreign real estate to the jurisdiction of the state in which it is located (Article 88b §2 nPILA).

Applicable Law

B. Principle Of Deceased’s Place Of Last Residence

• Place of last residence in Switzerland
  
  As per Article 90 §1 PILA, remaining unchanged through the revision, the deceased’s place of last residence in Switzerland is used as default criteria to determine that Swiss law is the applicable inheritance law. Furthermore, in this situation, under the principle of unity of succession, Swiss law applies as the only governing law to one’s estate, wherever the assets are situated. This principle is however limited by two factors. Firstly, the last residence is determined through the relevant general provision (Article 20 §1 let. a PILA), and not by foreign law, ie it is the place where a person resides with the intention of settling. If no residence abroad is identified, then Swiss law applies. Secondly, as international treaties take precedence over PILA law, the resulting applicable law may change.
  
  
• Place of last residence situated abroad
  
  The current wording of the law is unsatisfactory, insofar as Swiss conflict-of-laws rules (current Article 91 §1 PILA, repealed by the revision) again refer to foreign private international law, and vice versa, in an endless loop. A classic example is that of a person whose last residence was in England and who owned real estate in Switzerland. Although there is a Swiss subsidiary jurisdiction (Article 88 nPILA), it is the English conflict-of-law rule that determines the applicable substantive law. However, the English rule then refers to the Swiss one.

The new Article 90 §2 nPILA has the merit of putting an end to this legal uncertainty, which often leads to the same result as under ‘foreign court theory’. By means of new Article 90 §2 nPILA, if the deceased had his last residence set abroad (regardless of nationality), the inheritance will be governed by the national law designated by the private international law of the state of residence (and their respective conflict rules). Thus, where that law designates Swiss private international law as the rule of designation, the substantive inheritance law of the state of the deceased's last residence will be applicable.

However, if the Swiss authorities are competent within the meaning of Article 87 nPILA, ie at place of origin of a Swiss national dying with last residence abroad, Swiss substantive law applies in the absence of a choice of law (Article 91 §1 nPILA and Article 90 §3 nPILA). It should be noted, though, that in case a choice of law is made, the last residence criterion loses its power.

B. Choice Of Applicable Law Under Article 91 §1 nPila

Until now, foreigners domiciled in Switzerland may submit their succession to the law of one of their national states, but this choice becomes null and void if, at the time of death, they no longer had that nationality or became Swiss. Hence, a Swiss binational domiciled in Switzerland cannot currently choose a foreign law to govern their estate.

Going forward, Swiss dual nationals will be allowed by Article 91 §1 nPILA to choose one of their national laws, aligning with European regulation. Additionally, they must hold the nationality in question at the time their Will is drawn up or at the time of their death.

However, this amendment was most keenly disputed in Parliament and gave rise to divisions between Chambers. The final revised text now only provides circumscribed leeway: compromise reached by Parliament on Article 91 §1 nPILA prohibits derogations to principle of forced heirship and distributable inheritance share. This means that Swiss law on forced heirship remains reserved and applicable to Swiss dual nationals’ estate planning, even when choosing their inheritance to be governed by their foreign national inheritance laws.

If the testator has given jurisdiction to Swiss authorities within the meaning of Article 87§2 nPILA, the estate is presumed to be subject to Swiss law, unless otherwise specified. In other words, if the testator does not intend to elect Swiss law when giving jurisdiction to the Swiss authorities, they will need to specify that their Will does not affect the applicable inheritance law.

For Wills and gifts mortis causa, the last domicile at the time of drawing up the document, and not at the time of death, will be decisive, and a choice of law will also be permitted (Article 94 §1-2 nPILA). For inheritance contracts (Article 95 nPILA), to which these principles already apply, the possible choices will be wider. ‘Reciprocal’ Wills will no longer be dealt with in the provisions governing inheritance agreements, unless they are based on a binding agreement.

Future Opportunities

These provisions modernising Swiss inheritance law surely represent a step forward. However, expectations were high for a more liberal change in the law, allowing the testator to choose the destination of their entire estate, without being restricted by Swiss forced-heirship provisions. Despite this, revised PILA expands opportunities in transnational estate-planning, while remedying a few legal ambiguities and giving more freedom to testators, which is great news. These changes will make international estate planning all the more important.

Although unlikely, the revised law can still be the subject of popular referendum until 18 April 2024. The Federal council is then bound to determine when this law will come into force. The earliest date would be 1 January 2025, if not 2026. The new provisions will apply to deaths occurring after the date of entry into force.

This article was originally published by IFC Review, Wednesday 15 May, 2024