In Switzerland, you don’t have complete freedom to decide who your assets will pass to after your death: articles 548 and onwards of the Code of Obligations (CO) set out your legal heirs in order of inheritance, as well as the minimum to which they are legally entitled regardless of your will and testament.
Your legal heirs are:
1. Your surviving spouse or civil partner;
2. Your children (including adopted and officially recognised children) or their descendants (first-degree relatives);
3. If you have no children, your parents or their descendants (second-degree relatives);
4. If your parents are no longer alive and have no living descendants, your grandparents or their descendants (third-degree relatives).
The order of inheritance is based on the degree of relation: second-degree relatives have a claim to your estate if you have no living first-degree relations; if you are survived by neither first- nor second-degree relatives or a spouse, your third-degree relatives are in line to inherit.
The degree of relation of your legal heirs also determines the statutory inheritance that they receive by default in the absence of a will if you are survived by your spouse/partner:
1. If you are survived by first-degree relatives, by default they share half of the inheritance evenly between them and your surviving spouse/partner receives the other half;
2. If you have no children or descendants but are survived by second-degree relatives, the latter share one quarter of the inheritance by default and your spouse/partner receives three-quarters;
3. If you have no living first- or second-degree relatives, your spouse/partner inherits the whole estate by default.
Within the line of legal heirs, some are “forced heirs”.
“Forced heirs” (héritiers réservataires)
This term refers to heirs who cannot be completely disinherited, even if you write a will leaving your entire estate to other people or entities. According to Swiss law, these heirs have a right to a certain amount of your estate regardless of your wishes. Their entitlement is referred to as their reserved portion or “réserve hériditaire”, and it is calculated as a fraction of the statutory inheritance that they would receive by default if you hadn’t left a will. Your forced heirs are:
1. Your surviving spouse or registered partner, whose reserved portion is half of their statutory inheritance;
2. Your children (or grandchildren or great-grandchildren), whose reserved portion is three quarters of their statutory inheritance;
3. If you have no children, your parents, whose reserved portion is half of their statutory inheritance.
Appointed heirs (héritiers institués)
This refers to beneficiaries whom you name in your will to receive part of your estate, within the limits of the disposable portion (i.e. what is left after the reserved portions mentioned above have been allocated). You can appoint any person or institution (legal entity) as an heir. It is also possible to name a legal heir as an appointed heir to receive more than they otherwise would.
Our top tip: if you want to leave some of your assets to people outside of your close family, think about the inheritance tax, which is higher the more distant the relation to you of your appointed heir.
If you have no legal heirs and haven’t appointed any, your estate will pass to the canton in which you were last resident, or the commune designated by the canton.
Example of how an inheritance is divided up
Imagine that you are survived by a spouse, two children and your parents, and you haven’t written a will. In this case, your estate would be divided up as follows by default:
- Your spouse inherits half of your estate, since it is shared with first-degree relatives (your children);
- Your children share the other half between them, so they each inherit one quarter of your estate;
- Because you have children, your parents don’t inherit anything.
However, if you left a will appointing other heirs, your spouse’s and children’s inheritances would be reduced to the reserved portion:
- Your spouse’s reserved portion is half of the statutory inheritance indicated above (half of your estate), making it no less than one quarter of your estate as a minimum;
- Each of your children is entitled to a reserved portion equal to three quarters of their statutory inheritance (one quarter), resulting in a minimum inheritance of three sixteenths of your estate;
- The reserved portions therefore total five eighths (5/8), leaving a disposable portion equal to three eighths (3/8) that can be left to your appointed heirs.
A surviving spouse or partner is the only legal heir not related to the deceased by blood. As indicated above, the inheritance to which they are entitled depends on your other surviving legal heirs. Your marital regime also plays a key role here, as the estate divided among your inheritors is what’s left of your assets after the marital regime has been settled.
My spouse/partner has passed away: what are my inheritance rights?
When one member of a married couple or registered partnership dies, the allocation of their assets involves two steps: first settling the marital regime, and then settling the inheritance.
The way that an inheritance is divided up according to the Swiss Civil Code is designed to ensure that the surviving spouse can maintain the standard of living to which they are accustomed.
The example below illustrates this two-step process in the event of the death of a husband if the couple have the default marital regime (“joint ownership of acquired property”):
I. Settlement of the marital regime
The couple’s assets:
|Husband’s private property||CHF 50’000|
|Wife’s private property||CHF 15’000|
|Assets acquired during marriage (jointly owned):|
|Husband’s acquired assets||CHF 100’000|
|Wife’s acquired assets||CHF 80’000|
|Total acquired assets||CHF 180’000|
|Half of acquired assets||CHF 90’000|
Due to the widow in relation to the marital regime:
|The widow retains all of her private property||CHF 15’000|
|and half of the couple’s acquired assets||CHF 90’000|
|Total due to the widow in relation to the marital regime:||CHF 105’000|
Included in the deceased husband’s estate to be inherited:
|Husband’s private property||CHF 50’000|
|Half of the couple’s acquired assets||CHF 90’000|
|Total estate||CHF 140’000|
If the husband has children, by default they share half of the estate (CHF 70 000), and the wife inherits the other half. She therefore receives CHF 175 000 in total following her husband’s death (105 000 + 70 000).
Can I leave more to my spouse?
There are a couple of ways you can leave more than the statutory amount to your spouse, as long as it doesn’t affect the reserved portion to which your forced heirs are entitled:
1. You can write a will leaving the minimum amount possible to your descendants or parents (their reserved portions) and leave the rest of your estate to your spouse;
2. You can instruct your spouse to be given beneficial ownership of assets left to other heirs to use without owning them, in addition to the assets that he or she actually inherits.
In some cantons, including Geneva, assets that a surviving spouse inherits are exempt of all taxes (unless the deceased person was taxed annually at a flat rate).
Residences and furniture
To protect surviving spouses, the Civil Code gives them the right to ask for actual ownership or beneficial ownership of (i.e. the right to use) residences and furniture to be included in their inheritance. However, this does not apply if the property serves as the premises of a business that one of the descendants is going to take over.
Pensions and life insurance
The surviving spouse is often the primary, if not only, beneficiary of life insurance policies and pension plans, prescribed either by the law or by beneficiary clauses of the relevant contracts.
A divorced spouse has no inheritance entitlement upon the death of their former partner, but children from previous marriages and children born outside of marriage are all entitled to the same inheritance. A surviving spouse also has no right to beneficial ownership of assets inherited by their spouse’s children from other relationships.
Heirs inherit not only assets but also the deceased’s debts. You have a few options if you find yourself in this situation as the beneficiary of an inheritance:
1. Acceptance: you can simply receive the assets left to you and pay any outstanding debts – this is the default, so if no alternative is requested, it is assumed that you and the other heirs accept the debts;
2. You can request an inventory (within one month of the death) in order to find out exactly what assets and liabilities are included in the estate; you can then either accept or renounce the inheritance or request that the estate be liquidated;
3. You can renounce the inheritance so that you will not be held liable for the debt, but will still receive a portion of the remaining inheritance after the debts have been paid; you must renounce it within of learning of the person’s death or of your inheritance right, and you can’t renounce it once you’ve started handling the inheritance beyond the necessary administration – this is taken to mean that you accept the debts;
4. All of the heirs can jointly request that the estate be settled (assuming the deceased person was solvent) to free them of any liability for outstanding debts; in this case, the debts are paid using the assets left and what remains is then divided up among the heirs. Settlement of the estate must be requested by all of the heirs – as soon as one accepts, this option is no longer available.