Reform and Modernization of the Swiss Inheritance Law
Reform of the Forced Share Rules
Under the current law, testators only have limited freedom in dividing up their estate, as the law stipulates guaranteed shares of the deceased’s estate for the children, spouses and, in certain cases, the parents, which cannot be overridden by drafting a different will. To allow the testator to freely dispose over a higher amount of the estate, the Swiss Federal Council proposes to amend the forced share rules by granting to children only ½ instead of ¾ of their statutory inheritance rights (i.e. the amount of the estate which is assigned to each heir by law as if there were no will in place), to spouses only ¼ instead of ½ of their statutory inheritance rights and by deleting entirely current parent’s guaranteed share of ½ of their statutory inheritance rights. However, the exact amounts of the proposed guaranteed shares are still controversial and will be reviewed again during the legislative process.
Unmarried partners or stepchildren will still not be granted statutorily guaranteed shares, however, the reduction of the compulsory entitlements as described above allows the testator to participate such individuals to a higher amount of the respective estate, if such individuals are considered in a will. Moreover, the reduction of the compulsory shares opens interesting options for corporate successions. The Swiss Federal Council is however still assessing further possibilities for allowing simplifications and more flexible solutions for corporate successions.
Statutory Legacy on the Benefit of Cohabitants and/or Children
The current proposal of the Swiss inheritance law stipulates certain additional improvements for qualified cohabitants (i.e. couples of same or the opposite sex without marriage or registered partnership) who have provided substantial care or financial assistance to the deceased and have factually cohabited with the deceased for at least three years. Under such circumstances, an unmarried partner shall have a right to receive a statutory legacy, i.e. a certain amount of the deceased’s estate as compensation for the services performed. Also, children that have lived in a common household with the deceased shall be entitled to receive a legacy of maintenance provided certain conditions are met.
Also, legacy hunting shall be contained by means of limiting the amount distributable to persons which have been in a professional relationship of trust with the testator (e.g. doctors, nurses or lawyers) to a quarter of the testator’s estate.
Another major amendment of the current Swiss inheritance law relates to the information rights of the heirs towards third persons. The intended revision of the Swiss inheritance law proposes an extension of the information rights towards any person who has managed, possessed or received any assets of the deceased such as for instance trustees or members of the board of foundations. This may lead to far reaching information rights as it is intended that such information rights can neither be withdrawn by means of testamentary disposition nor by arguments of professional confidentiality duties. Again, the details of the new provisions are still being discussed.
Testamentary Formalities in case of Emergency
The new law provides for a new form of drafting a last will in cases of emergency. So far, the law only provided for the possibility of an oral witnessed will by use of two witnesses. The new provisions will provide for a last will by audiovisual technique (i.e. in particular by use of smartphones) – but only in cases of emergency such as immediate danger of death.
Further Legislative Process
The Swiss Federal Council has instructed the Swiss Federal Department of Justice elaborate a dispatch to be submitted to the Swiss Parliament by end of the year. Therefore, parliamentary debates over the amended law project can be expected to start in March 2018, whereby the new provisions will most likely not become effective before 2010.