Is it possible to disinherit one's spouse in the event of a divorce in Switzerland?

Divorce marks a significant break, but its legal effects are not immediate in all areas. In matters of inheritance, a crucial question arises: can your spouse still inherit from you during the divorce proceedings?

Under Swiss law, the answer depends on the time of death and the measures you have taken. Since the reform of inheritance law came into effect in 2023, new options exist to better protect your wishes.

1. Inheritance rights of the spouse during marriage

A position protected by law

Under theArticle 462 of the Swiss Civil CodeThe surviving spouse is a legal heir.

• In the presence of descendants: he receives half of the inheritance
• In the absence of descendants: he inherits from the whole or shared with the parents

The spouse also benefits from hereditary reserve corresponding to half of his legal share (art. 471 CC).

This reserve limits your freedom to dispose of your assets.

The role of the matrimonial property regime

Before any inheritance, the matrimonial property regime must be settled.

Under the regime of participation in acquisitions (art. 196 ff CC:

• each spouse has the right to half of the other's acquisitions
• this step precedes the succession

The estate is therefore often smaller than one might imagine.

2. After divorce: loss of inheritance rights

Once the divorce is finalized and becomes legally binding:

• The former spouses are no longer heirs.
• the testamentary provisions in their favor become in principle lapsed (art. 120 al. 2 CC)

In principle, no action is required after a final divorce.

3. The critical period: during the divorce proceedings

A risk often underestimated

As long as the divorce is not final:

• the spouse remains the legal heir
• he retains his inheritance rights

In the event of death, he can therefore inherit, even if the separation is already effective.

4. New for 2023: possible elimination of the spouse's reserve

Since January 1, 2023, Swiss law allows, in certain situations, the elimination of the spouse's reserved portion of the estate. even before the divorce.

In accordance with theart. 472 al. 2 CCYou can deprive your spouse of their inheritance if:

• divorce or legal separation proceedings are pending, and
• either the procedure was initiated by mutual agreement,
• either the spouses have been living separately for at least two years

In these cases, it becomes possible to completely exclude the spouse from your estate by will.

Strict conditions

• The conditions must be met. at the time of death
• The wording of the will must be clear and legally correct.

Otherwise, the spouse will be able to assert their right to a reserved portion of the estate.

5. What concrete steps can be taken?

Change your will immediately

From the outset of the divorce proceedings, it is recommended to:

• revoke the provisions in favor of the spouse
• write a new will

Depending on your situation, you can:

• allocate the disposable portion to other people
• or, if the conditions are met, remove the spouse's reserve

6. Can one disinherit one's spouse?

Apart from cases related to divorce, disinheritance remains possible only in serious situations (art. 477 CC:

• serious criminal offence
• serious violation of family duties

Divorce or separation is not enough.

7. Pay attention to insurance and pension plans

An essential point that is often overlooked:

The following benefits are not part of the estate:

• 2rd pillar
• 3rd pillar
• life insurance

They follow their own rules.

Steps to take

From the start of the divorce proceedings:

• change the beneficiaries with your pension fund
• adapt your pillar 3a
• review your life insurance policies

Otherwise, your spouse could remain a beneficiary.

8. Mistakes to avoid

• Thinking that the divorce procedure is enough
• Ignoring the spouse's reservation
• Not adapting your insurance
• Ignoring the tax consequences

In Switzerland, inheritance tax varies greatly depending on the canton (Geneva, Vaud, etc.).

9. Recommended steps

Proper timing

1. Start of the procedure → immediately amend the will
2. During the procedure → adapt insurance and benefits
3. After the divorce → make a complete new will

Which shape to choose?

According to art. 498 ff CC :

• holographic will (quick and simple)
• public will (secure)
• oral will (exceptional)

Conclusion: A game-changing reform

Before 2023, it was impossible to completely exclude one's spouse before divorce.

Today, this is not always the case.

In certain situations, you can now:

✔ remove its reserve
✔ completely exclude it from your inheritance
✔ effectively protect your wishes

But these mechanisms remain technical and must be used with precision.

Legal Testa Recommendation

If you are in the process of getting a divorce, your situation requires special attention.

Support allows you to:

• check if the legal conditions are met
• secure the removal of the reserve
• to avoid any future disputes
• adapt your inheritance and tax strategy

Legal Testa assists you in drafting a legally sound will that conforms to your situation.