SWITZERLAND Law and Practice Contributed by: Olivier Sigg and Quentin Thorens, Walder Wyss
or to the commune designated by the law of that can- ton. In Switzerland, intestacy is therefore predictable but sometimes unsuitable for modern families, particularly those involving unmarried partners and stepchildren, which are not heirs under Swiss law (see 11. Planning for Non-Traditional Families ). 3.2 Forced Heirship Forced heirship exists under Swiss law but has under- gone significant recent changes. Since 1 January 2023, the disposable portion of the deceased’s estate has been increased to the detriment of forced heirs. In particular, parents, who previously qualified as forced heirs, no longer benefit from such protection. Accordingly, the current legal framework is the fol- lowing: • The surviving spouse is a forced heir, entitled to one-half of their statutory share (see 3.1 Intestate Succession ). • The descendants are forced heirs, also entitled to one-half of their statutory share (see 3.1 Intestate Succession ). In other words, the testator now enjoys full testamen- tary freedom over one-half of their estate, whereas the other half of their estate must necessarily pass to the forced heirs. During their lifetime, the testator is free to dispose of their assets and to make gifts either to third parties or heirs, whether or not such gifts are to be brought into account in the estate. However, in certain cir- cumstances (eg, certain advances against a person’s share of an inheritance, to the extent these are not subject to hotchpot, assets alienated by the deceased with the obvious intention of circumventing the limita- tions on their testamentary freedom, or gifts made in the five years prior to their death, with the exception of customary occasional gifts), these gifts are taken into consideration when calculating the hereditary estate in order to ensure compliance with forced heirship. In the event of an infringement of those compulso- ry shares, the forced heirs may bring an abatement
action against the recipients of gifts subject to reduc- tion. Forced heirship protection in Switzerland is therefore robust and difficult to circumvent; however, these rights may be waived under strict conditions. Indeed, a testator may conclude an inheritance renunciation contract with an heir with or without valuable consid- eration. The renouncing party and, unless provided otherwise, the issue of the renouncing party are then not deemed to be heirs of the estate. To be valid, such inheritance renunciation contract must meet the fol- lowing requirements: • The parties must be capable of judgement. • The parties must have reached the age of 18. • The contract must be concluded by public deed, ie, made in the presence of two witnesses by a public official, notary public or other person author- ised under cantonal law to conduct such business. Thus, with the agreement of the compulsory heirs, estate planning may follow rules that are completely different from those of intestacy. 4. Marital Property and Succession 4.1 Property Regimes During Life and Deathtime Rights and Protections The fate of marital property in succession planning depends on the applicable regime. Indeed, Swiss marital property law provides three different regimes: • The ordinary regime of participation in acquired property: In the absence of any choice of law by the spouses or provisions contained in a marriage contract, the ordinary regime of participation in acquired property automatically applies. Accord- ing to this regime, the spouses own two kinds of assets. On the one hand, each spouse individu- ally owns their individual property, which includes personal effects used exclusively by that spouse, assets belonging to that spouse at the beginning of the marital property regime or acquired later at no cost by inheritance or otherwise, and claims for satisfaction and acquisitions that replace individual property. On the other hand, the spouses jointly
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