La hereditary reserve is a fundamental concept of Swiss inheritance law. It aims to protect the financial interests of close family members during an inheritance.
The essential
What is the hereditary reserve?
How is the reserve calculated?
Is it possible to deviate from the reserve?
1. In the event of divorce proceedings
2. Conclusion of a succession agreement
3. Disinheritance
Understanding how the statutory inheritance system works in Switzerland?
This article explores what the statutory inheritance is in Switzerland, how it works, and highlights some of the changes that took place in 2023.
What is the hereditary reserve?
In Switzerland, the statutory portion is a minimum share of the inheritance that must be allocated to the statutory heirs, regardless of the deceased's testamentary wishes.
The beneficiaries of this protection are: direct lineal descendants and the surviving spouse or registered partner. This means that a portion of the estate must be allocated to them. The remainder of the inheritance, which is called the disposable portion, can be freely distributed according to the wishes expressed in a will or inheritance agreement.
It should be noted that the reserve in favour of parents disappeared with the modification of Swiss inheritance law which occurred in 2023. Similarly, brothers and sisters as well as other distant members of the family are not reserved heirs.
How is the reserve calculated?
The share that must be returned to descendants and/or the surviving spouse depends on the family situation of the deceased at the time of death. This share is calculated as follows:
- Descendants only : they must receive at least 50% of the estate.
- Descendants in competition with the surviving spouse : the surviving spouse must receive at least 25% of the estate and the descendants at least 25% of the estate.
- Surviving spouse only : if the deceased's parents are still alive (or their descendants in the event of their death), the surviving spouse must receive at least 37.5% of the estate. Otherwise, the surviving spouse must receive at least 50% of the estate.
The available portion, that is to say the share of the estate that the deceased can freely allocate by will, therefore varies according to these quotas. It is in all cases at least 50% of the estate since the reform of inheritance law in 2023.
Is it possible to deviate from the reserve?
The possibilities for deviating from the reservations provided for in the law are limited. These mainly concern the new provision applicable in the event of divorce or separation proceedings, the inheritance agreement, and finally disinheritance.
1. In the event of divorce proceedings:
In the event of divorce proceedings, it is now possible to remove the surviving spouse's reserve if at least one of these two situations occurs:
- The proceedings were initiated by joint application or continued in accordance with the provisions relating to divorce by joint application
- The spouses lived apart for at least two years.
This assumes in all cases including a clause in his will by which the testator removes the hereditary reserve of his spouse.
2. Conclusion of a succession agreement:
A succession agreement, which is a contract signed by the testator and the heirs, can establish specific terms and conditions that circumvent the traditional reserved portion. However, this type of document requires the explicit agreement of all the heirs concerned and must follow strict formalities to be valid, including having been concluded before a notary.
3. Disinheritance:
According to the law, it is possible by disposition for cause of death to remove the reserved portion of a reserved heir when the latter has committed a serious criminal offence against the deceased or one of his relatives or when he has seriously failed in the duties that the law imposes on him towards the deceased or his family.
For example, case law has held that a spouse who persists in a long-term adulterous relationship can be disinherited, or when a wife deprives her seriously ill husband of the necessary care by imposing indecent living conditions on him. On the other hand, unfair business conduct has not been deemed sufficient cause to disinherit one's child.
Conclusion
Swiss inheritance law underwent significant changes in 2023, essentially giving testators greater freedom. It is therefore imperative to fully understand the implications of the new rules when planning your estate, and in particular, to adapt your will if it was drawn up before the changes. Other changes are under discussion, particularly in the area of business transfer.
