Legal Share of Inheritance: Legal Situation, Amount, and Entitlements

If a person dies without leaving a will, the inheritance is distributed according to the rules of intestate succession. This stipulates that certain relatives of the testator receive a statutory share of the inheritance depending on their degree of kinship.

Intestate Succession vs. Statutory Share

According to Articles 457 to 459 of the Swiss Civil Code (CC), relatives entitled to inherit are divided into three ranks (parentels), which determine the order of distribution of the inheritance: First, the available portion of the estate is allocated to the relatives in the first parentel, i.e., the direct descendants. If there are no relatives in the first parentel, the relatives in the second parentel, i.e., the testator’s parents and their relatives, receive the inheritance. The same applies between the second and third parentel, where the grandparents and their relatives are appointed as heirs.

Furthermore, even if a will exists, certain relatives of the testator can assert a claim to a portion of the inheritance, regardless of whether they are named in the will or not (Article 470 of the Swiss Civil Code). This claim is called the compulsory portion in Switzerland. Due to the statutory protection of compulsory portions, it is not possible to simply disinherit individual relatives through a will or inheritance contract.

Only a small group of heirs are entitled to a statutory share. Depending on the situation, these can be the spouse, registered partner, and/or the descendants of the testator (Article 471 of the Swiss Civil Code).

How much is the spouse’s statutory share?

The spouse’s statutory share is half of the statutory share. The statutory entitlement depends on whether there are relatives in the first and second parental line.

If the testator leaves behind children, their estate is divided between the spouse and the children or their descendants. The spouse then has a statutory share of 25%.

Are life partners entitled to a statutory share?

Whether life partners are entitled to a statutory share depends on whether the partnership is registered or not. Registered partners are treated equally to spouses under Swiss inheritance law. They are treated like spouses and have the same statutory share. The situation is different for unregistered partners or partners without a marriage certificate (cohabiting partners). They are not entitled to a statutory share. This also applies if the couple has lived together in Switzerland for several years and has children together.

Tip: If you want to ensure that your partner does not miss out after your death, you should draw up a will. Another option for leaving assets to your partner is a lifetime gift through an inheritance contract.

How much is the statutory share for children and grandchildren?

The statutory share regulations for children are just as clear as those for spouses. If there is a spouse, the children’s statutory share is 25% of the estate. If there is neither a spouse nor a registered partner, the children receive a statutory share of 50% of the estate (Article 471 of the Swiss Civil Code). This statutory share can, in turn, be divided equally among several children. If a child is no longer alive at the time of the inheritance, their share goes to their own descendants. If there are no heirs in this line, the estate passes to the heirs of the second order.

How much is the statutory share of parents and siblings?

Since the changes to inheritance law, parents and siblings are no longer entitled to a statutory share.

The statutory share is a right vested in the heirs that cannot be revoked by a will. If the testator makes provisions that exclude or incorrectly calculate the statutory share of individual heirs, the heirs can legally contest the inheritance (Articles 519 to 533 of the Swiss Civil Code).

Special Case: Waiver of Inheritance and Exclusion from Succession

However, there are cases in which even legal heirs protected by the statutory share can be excluded from the inheritance. Firstly, they can waive their statutory share themselves. To do so, a waiver of inheritance agreement must be drawn up during the testator’s lifetime and signed by the heirs and the testator (Article 495 of the Swiss Civil Code). Typically, the waiver of the statutory share is made in return for a financial settlement. Finally, an heir can also be excluded from the inheritance for legal reasons. Such exclusion from the inheritance requires that they be deemed unworthy of inheritance.

This is the case, for example, if an heir has committed or attempted to commit criminal offenses against the testator or a person close to him (Article 477 of the Swiss Civil Code). Such serious offenses are usually bodily harm or gross neglect of family duties. Withdrawal of a statutory share is also possible if an heir is so heavily indebted that the inheritance would fall to her creditors, or if the heir suffers from a gambling addiction. However, the mere fact of a bad relationship with a relative or of disapproving of their lifestyle is not sufficient to deprive a legal heir of their statutory share.

In principle, children or other beneficiaries of a statutory share must wait until the inheritance occurs to claim their statutory share. However, early withdrawals from the estate are permitted, provided the testator consents. The fact that one person may benefit from an early withdrawal has no effect on the other heirs, who generally must wait until the testator’s death to receive their statutory share.

Legal Share and Gifts During Lifetime

If an heir entitled to a statutory share has already received a gift during the testator’s lifetime, they are obliged to compensate the other heirs after the testator’s death (Article 626 of the Swiss Civil Code). For example, a child who receives a house as a gift from their parents during their lifetime can later deduct this gift from their inheritance upon the death of one parent. However, smaller gifts are exempt from the obligation to compensate.

In certain cases, lifetime gifts can also save inheritance tax. For a gift to be valid according to Articles 239 to 252 of the Swiss Code of Obligations (CO), a gift contract must be concluded. For it to be considered a gift, the transfer of the asset may not be made dependent on consideration.

Inheritance Contract Between Spouses

An inheritance contract is a possible alternative to a will, allowing testators to make dispositions with one or more heirs during their lifetime (Article 494 of the Swiss Civil Code).

In an inheritance contract, all parties are clear about the content of the contract and thus about the order of succession and jointly agree to it. In this respect, an inheritance contract differs significantly from a will. The inheritance contract generally serves to benefit the spouse or life partner. Through an inheritance contract, the heir can receive the entire free portion of the estate, i.e., the portion of the estate that remains after deducting the statutory shares. A lawyer specializing in inheritance law will be happy to assist you in drafting an inheritance contract.