Modernisation of Swiss inheritance law: greater freedom for the testator
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The Federal Council has just adopted a message addressed to Parliament with the aim of adapting inheritance law to the evolution of society.
The proposed amendments include reducing the statutory entitlement (“réserve légale”) of the descendants, abolishing the statutory entitlement of the parents, and thus increasing the testator’s freedom to dispose of his assets, creating an "assistance claim" in favour of the life partner and changes to the calculation of the estate.
Statutory entitlement
Firstly, the Federal Council proposes to reduce the statutory entitlement of the descendants (from three quarters to half their right of succession) and to abolish the parents’ statutory entitlement. The testator will thus be able to favour people of his choice more and will benefit from greater flexibility in the transfer of family businesses.
Secondly, in the event of death before the end of the divorce proceedings or proceedings for the dissolution of the registered partnership, the survivor will, in principle, lose his status as heir entitled to a compulsory share. The Federal Council thus intends to avoid the temptation to drag out the procedure.
Improved status of the surviving spouse or registered partner and life partner
On the one hand, the project plans to increase the right to dispose (“quotité disponible”) where there is a usufruct in favour of the surviving spouse or registered partner from one quarter of the estate to half of the estate. The testator will thus be able to favour his surviving spouse or registered partner more by granting him half of the estate in full ownership and the usufruct on the other half.
On the other hand, an "assistance claim" will be possible, under certain conditions, in favour of the person who was in fact living with the deceased as a couple (life partner). It will not be possible to exclude this claim against the estate by will or by an agreement after the death; therefore, the life partner will have priority over the heirs entitled to a compulsory share (their statutory entitlement being calculated after deducting the assistance debt).
Clarifications regarding the calculation of the estate
In the case of the attribution of an additional share of the profit to the surviving spouse or registered partner by marriage contract or assets agreement, this attribution must be qualified as an inter vivos gift (and not as a testamentary disposition) and will have to be included in the calculation mass of the statutory entitlement (which will thus increase).
Private pension plans (pillar 3a) do not form part of the estate but may be reduced if the heirs entitled to a compulsory share do not receive their statutory entitlement.
What remains unchanged
The statutory entitlement of the surviving spouse and registered partner will be maintained at half of their succession right and will thus be equal to that of the descendants.
The statutory heirs remain the same and their inheritance shares will not change.
As a consequence, in the absence of testamentary dispositions, the division of the deceased's estate will be identical as today’s (except in the case of a claim for assistance for the life partner).
Next steps
Swiss inheritance law has hardly undergone any changes since its entry into force in 1912. The Federal Council's proposals, which will be the subject of parliamentary deliberations in the near future and should come into force in 2020, or even in the course of 2019, aim to adapt inheritance law to modern society and other legislative innovations such as the possibility, from 1 January 2018, of adopting the child of one’s registered partner. This is a first step in this direction, which should be followed in the medium term by the adaptation of Swiss inheritance law to the digital reality.
Charles Russell Speechlys can advise you on your wealth and estate planning and assist you in drafting your testamentary dispositions.
If you have any questions, please do not hesitate to contact Grégoire Uldry.
This article was written by Grégoire Uldry, Christophe Levet and Amelia Moore. For more information please contact Grégoire on +41 (0)22 591 18 80 / Grégoire.uldry@crsblaw.com, Christophe on +41 (0)22 591 18 56 / Christophe.levet@crsblaw.com.
