In Swiss inheritance law, the freedom to dispose of one’s assets by will or by contract of succession is framed by the protection of certain close relatives.
The statutory entitlement is the minimum fraction of the estate that the law imperatively guarantees to protected heirs, and it reduces by the same amount the disposable part that the deceased may freely assign to third parties.
The heirs entitled to a statutory entitlement and the calculation of their share
Since the reform of inheritance law came into force, the circle of beneficiaries and the proportion of the entitlements have been simplified and relaxed:
- The restricted circle of protected heirs: Only direct descendants (children or grandchildren) and the surviving spouse or the surviving registered partner have a statutory entitlement; the father and the mother no longer have any entitlement and may be excluded from the estate altogether, as may brothers, sisters and other collateral relatives.
- The uniform rate of the entitlement: The statutory entitlement now uniformly amounts to one half (1/2) of the statutory right of succession of each protected heir; by way of illustration, where a deceased leaves children and a surviving spouse (each of whom would by law be entitled to one half of the estate), the entitlement of each group is one quarter (1/4) of the entire estate, thus freeing a disposable part of one half (1/2) of all the assets.
Protection of the entitlement and interference with it
A breach of the statutory entitlement does not automatically render the deceased’s dispositions void, but it opens specific remedies:
- The action for abatement: Dispositions mortis causa or inter vivos that encroach on the entitlement are not void as of right but voidable; the heir whose entitlement has been infringed, or who has been omitted altogether, must bring an action for abatement in order to obtain the concrete reconstitution of his share in value within the time limits laid down by law.
- Contractual arrangements and usufruct: The protected heirs may waive their entitlement in advance by a notarised contract of succession; in addition, the spouse or the registered partner may, by a special disposition mortis causa, be granted the usufruct of the entire share devolving on the common descendants, partly at the expense of their entitlement in ownership.
It limits what a will may freely assign. This civil-law limit is distinct from inheritance tax, which depends on the canton. The valid forms and the notarial preparation are set out in AI for an authentic will.
Legal sources
Federal legislation:
- Art. 470 CC(cited byBGE 150 III 160 ; Federal Supreme Court judgment 5A_238/2023 ) (limitation of the freedom of disposal to the entitlements of the descendants and of the spouse or partner)
- Art. 471 CC (fixing of the statutory entitlement at one half of the right of succession)
- Art. 473 CC (grant of the usufruct to the surviving spouse or partner over the share of the common descendants)
- Art. 481 CC (limits of the freedom of disposal according to the disposable part)
- Art. 494 CC (contract of succession and challenge of incompatible dispositions)
- Art. 522 CCandArt. 523 CC (action for abatement in order to reconstitute the infringed entitlement)
- Art. 531 CC (voidness of substitution clauses burdening the statutory entitlement)
Federal case law:
- BGE 150 III 160 (circle of protected heirs limited to direct descendants and the spouse, and standing of the omitted heir to bring an action for abatement)
- BGE 133 III 309 (concrete rather than abstract examination of a breach of the statutory entitlement in the case of a fideicommissary substitution)
- Federal Supreme Court judgment 5A_610/2013 (testamentary dispositions that breach the statutory entitlement are not automatically void, but merely subject to challenge via an abatement action within the statutory time limits)
- BGE 95 II 519 (validity of a contractual waiver of the statutory entitlement in a succession agreement)