SWITZERLAND Law and Practice Contributed by: Natalie Dini and Peter Vogt, Tax Partner AG
• all descendants taken together receive half of what intestacy would give (although parents are no longer protected); • the rest of the estate is the freely disposable por - tion that a testator may leave to anyone. The shares are calculated on the net estate; if a will or gift breaches them, any forced heir can sue for a reduction of the excess. Workarounds There are, however, a number of consensual worka - rounds that allow for greater testamentary freedom: • inheritance contracts allow heirs, while the testator is alive, to waive or rearrange their protected share by notarised agreement; • renunciation agreements allow an heir to give up their share outright (often against compensation) either inter vivos or after the death; • a disclaimer after death allows an heir to simply refuse the succession, letting the estate pass to the next rank; If the forced heirs concerned sign one of these con - tracts, the estate can be distributed in almost any pat - tern despite the statutory rules. Marital Agreements In a prenuptial agreement the standard split between spouses can be amended by assigning all or part of the surplus to one spouse. 2.4 Marital Property Participation in Acquisitions If the couple sign no marriage contract then the par - ticipation in acquisitions regime will apply by default. Each spouse keeps separate legal ownership of two asset pools: • their own property – assets brought into the mar - riage, inheritances/gifts, and items for strictly personal use; and • acquired property – income earned and savings built during the marriage (salary, dividends, pension credits, etc).
At dissolution (divorce or death), the net acquired property of both spouses is added together and split 50:50; own property is never shared. Contractual Alternatives Alternatives to the participation in acquisitions regime include: • community of property, where most assets become joint property and on dissolution the common property is split 50:50; • separation of property, where each spouse owns, manages and keeps everything that is in his or her name and there is no equalisation on divorce or death (except what inheritance law may grant); and • mixed regimes, where couples may tailor the default rules (eg, exclude a business from being shared or agree different split ratios) so long as the mandatory minimum protections for spouse and children are respected. Prenuptial and Postnuptial Contracts These contracts must be executed as a public deed before a notary and signed by both spouses. Contractual agreements are respected by Swiss courts if: • executed as a notarial deed; • both parties had capacity and gave genuine con - sent; and • the terms do not strip either spouse of the statu - tory minimum share on death (forced heirship) or violate public policy. Contracts concluded abroad are upheld if they meet the form prescribed by the Hague Matrimonial Prop - erty Convention or by the spouses’ national law. Spouses may, in the same notarised deed, elect the matrimonial-property law of: • the country where one spouse is domiciled; or • the country of either spouse’s nationality.
535 CHAMBERS.COM
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