Inheritance law in Switzerland: A practical guide

In the Swiss Confederation, inheritance is governed by law, supported by the Civil Code: it decides who your heirs will be and what their share of the estate will be. However, it is possible to change this distribution (at least in part) by drawing up a will or an inheritance agreement: a freedom limited by the reserved portion of the estate. What does Swiss inheritance law provide for? What provisions apply to real estate that forms part of the estate? FGP Swiss & Alps explains everything.

Swiss inheritance law: what does the default law say?

Swiss inheritance law regulates who inherits in the event of the testator’s death, and how the estate is divided between the heirs. In the absence of dispositions mortis causa (wills or inheritance agreements), it is the Civil Code that determines the distribution of inheritance and matrimonial property, defining who the legal heirs are and what shares they are entitled to, according to an order based on degree of kinship – known as the “order of kinship”. This order is as follows:

– The surviving spouse, classified as a priority (spouse or registered partner).

– Descendants (children, grandchildren or great-grandchildren).

– Failing that: parents or their descendants, brothers and sisters or their descendants, then grandparents or their descendants.

– If there is no spouse or parents: the entire estate reverts to the State.

For example, under Swiss inheritance law, which is applied by default, a single parent with two children will see his or her assets divided equally between each of them. If the testator leaves a spouse and two children, the estate is divided into two parts: one half for the spouse, the other for the children. If the deceased was married, the law of the matrimonial regime takes precedence: only the remaining share constitutes the estate. But beware: cohabitees are not legal heirs, and must therefore be included in a will or an inheritance agreement.

If there are no children, the estate is divided as follows: 75% for the partner and 25% for the next of kin and their descendants.

Can a testator freely decide what to do with his estate?

The Civil Code regulates inheritance by default, i.e. in the absence of provisions made by the deceased. However, it should be borne in mind that Swiss inheritance law can be freely regulated by each individual by means of a legal document. In practical terms, it is possible to provide for a different distribution of the inheritance in a will or inheritance agreement. This makes it possible to favour one or more legal heirs at the expense of the others, or to include other heirs that the law does not take into account – such as a partner.

Inheritance reserve

However, this can only be done within legal limits: certain close relatives are entitled to a minimum share of the estate, known as the “reserved portion”, which cannot be taken away from them, except in the event of a crime against the testator or his or her close relatives. Under the Swiss Civil Code, the amount of the inheritance reserve is divided as follows:

– 50% of the legal share of the estate for descendants (this share was higher before the revision of inheritance law in Switzerland).

– 50% of the legal share of the estate for spouses or registered partners.

Whatever happens, these heirs are entitled to half of the inheritance, i.e. the share provided for by law in respect of the reserved portion of the estate. This amounts to a maximum of half the total estate. The remainder is the available portion, or “non-reserved portion”, which the testator is free to dispose of according to his or her family situation on the day of death.

It should be noted that the right of parents to the reserved portion of an estate has been abolished by the revision of inheritance law, applicable from¹ January 2023. Parents inherit only if the testator has no descendants and the available portion has not been settled otherwise. Brothers and sisters are not entitled to inherit in their own right.

The available share

The available portion is therefore the part of the estate that the testator can distribute as he wishes. Let’s take the example used above of a parent (single or with a spouse) with two children. If this person decides to include another heir in his will, the shares are divided as follows (since the revision of Swiss inheritance law):

– 50% to be divided equally between the heirs with right to reserve, i.e. 25% each.

– 50% of the available share to be distributed freely.

In the absence of a spouse or heirs, the testator may freely dispose of the entire estate. It should also be noted that the testator is entitled to organise his or her estate without regard to the provisions of the law, provided that he or she has the agreement of the future heirs. The latter may then waive their rights, in part or in full, even if they have reserved rights. In this case, a contract of inheritance can provide for the abolition of hereditary reserves – but a will cannot.

Inheritance: what about property?

Real estate forms an integral part of the estate and is therefore subject to the same Swiss inheritance law. In the absence of an inheritance agreement or a will, the legal heirs (in order of kinship) each receive a share of the property concerned, or equivalent lots of all the property according to their respective shares. However, provisions made by the deceased may provide for a different distribution, within the limits of the hereditary reserve.

When the value of a property is too high to be allocated in a single lot, or when the property represents a large proportion of the estate and several heirs are involved, it becomes inevitable to sell it and share the proceeds. However, the testator can get round this obstacle by defining the rules for sharing the property in advance: he or she then chooses to bequeath the property(ies) to a single heir or to proceed with joint inheritance.

An important detail: under Swiss inheritance law, direct heirs are generally exempt from inheritance tax. This rule is an incentive to invest in property, since relatives (spouse and/or children) do not have to pay any money to keep the family property. The tax rate then varies according to the degree of kinship and the calculation rules specific to each canton, with a maximum of 54.6% for third parties.

How does Swiss inheritance law work for non-residents?

What happens if the deceased did not live in Switzerland? Swiss inheritance law provides that the applicable law is that of the country of residence at the time of death, e.g. French law if the deceased lived in France. This applies to all countries where the European Inheritance Regulation applies.

This law applies to all assets included in the estate, including real estate, regardless of their geographical location… except in special cases. Some countries, such as France, consider that the civil law of the place where the property is located takes precedence. This means that two separate laws may apply: the one that applies to the property and the one that applies to the rest of the estate.

However, not all countries have adopted this principle, to which the Swiss Confederation adheres. Where applicable, the Swiss judicial or administrative authorities (those of the canton in which the deceased was born) have subsidiary jurisdiction when the country of residence does not deal with the estate. In addition, a non-resident Swiss may decide to delegate to the authorities of his or her canton the whole of his or her estate, or that part of it which is in Switzerland, by means of a will or a contract of inheritance.

As you can see, international successions are more complex and are not necessarily governed by Swiss inheritance law. It is therefore preferable to use the services of a notary.