The author of this article, Dr. iur. Jacob Bollag, attorney-at-law, is legal counsel at Dr. J. Bollag & Cie. AG and has dealt with the topic of virtual heirs in depth as part of his doctoral thesis.
Entitlement to a compulsory portion and freedom of disposal in Swiss inheritance law
In contrast to many foreign legal systems, Swiss inheritance law provides for a statutory entitlement to a portion of inheritance for certain relatives of the diseased. Namely, these are the spouse and the descendants, and in the absence of descendants, the parents of the deceased. The compulsory portion is a legally determined quota of the estate to which certain heirs have a claim protected by law. The historical background to the statutory entitlement is the protection of the family or family-internal solidarity as well as ensuring the economic welfare of the survivors. In a few cases the testator can disinherit an compulsory heir and thus deprive him of his entitlement to his compulsory portion. A valid disinheritance is only possible if the said heir has committed a serious criminal offence against the testator or against a person closely affiliated to the testator or has seriously violated his or her obligations under family law towards the testator or his or her relatives. In all other cases, the entitlement to the compulsory portion is protected by law.
Nevertheless, the testator should be able to dispose of his or her estate as freely as possible. This important principle of Swiss inheritance law – the testator’s freedom of disposal – is diametrically opposed to the right to a compulsory portion. This contradiction is counterbalanced by the fact that dispositions of the testator that violate the compulsory portion are not invalid per se but remain in force until they have been challenged in court and set aside. If the heirs to the compulsory portion who have been disadvantaged by the testator decide not to challenge the disposition of death that violates the compulsory portion, it remains valid.
The requirements for a valid disinheritance are high. There may be valid reasons why a testator does not want to leave anything to a compulsory portion heir, but as a rule these are not sufficient for a valid disinheritance. In such a case, the testator can simply exclude or disadvantage the compulsory portion heir from the inheritance by means of a will or inheritance contract and thus make him or her a so-called virtual mandatory heir. However, the testator should be aware that the compulsory portion heir can, or must, challenge the will or inheritance contract in court. The testator can only hope that the necessity of a lawsuit with all the material and immaterial circumstances associated with it represents a sufficiently high hurdle that the completely excluded heir to the compulsory portion will refrain from contesting it. There is always a possibility that the compulsory potion heir will simply miss the deadline for contesting. As a rule, however, the chances of success of an action by the completely excluded compulsory portion heir are to be classified as very good.
The claim to the compulsory portion in terms of value
In connection with the action of the compulsory portion heirs who have been disadvantaged or excluded, special attention must be paid to any lifetime gifts of the testator. This is because the heirs to the compulsory portion are only entitled to receive the value of their compulsory portion. Accordingly, certain lifetime gifts to the heirs of the compulsory portion may be offset against the value of their compulsory portion. If their compulsory portion is fully covered by these benefits, a judicial challenge is no longer possible. The same applies to the payment of the compulsory portion in the form of a legacy. The legatee does not receive an inheritance but merely has a claim against the inheritance. If the legacy corresponds at least to the compulsory portion, a contestation of the will or inheritance contract is futile, since the compulsory portion has been covered in terms of value by the legacy.
In the absence of grounds for disinheritance, the testator can therefore only definitively exclude an heir to a compulsory portion from the inheritance if his or her compulsory portion was fully covered in terms of amount either by certain lifetime gifts or by a legacy. In all other cases, there is always the risk of a challenge by the surviving heir to the compulsory portion. The consequence of an exclusion from the will or inheritance contract is that the excluded person has no heir qualification. In practice, therefore, this instrument of inheritance planning is frequently resorted to in order to prevent a querulous heir to the compulsory portion from not becoming an heir and thus also having no say in the community of heirs. Conversely, however, it can also be used to prevent a compulsory portion heir from having to deal with the other heirs. The testator can favour him or her from the estate by means of a legacy without making him or her an heir at the same time. In this way, the excluded compulsory heir is incidentally not liable for the debts of the inheritance in contrast to the heirs.
The varieties of inheritance law are manifold and it is always necessary to consider not only the monetary effects of dispositions upon death, but also the psychological and emotional components. After his or her death, the testator can no longer explain to his or her heirs the motives for his or her dispositions upon death. For this reason, the necessary attention and care are always required when formulating a will or inheritance contract.
Our legal team will assist you in drafting a testamentary disposition tailored to your needs and will show you the legal possibilities of Swiss inheritance law in an understandable and comprehensible manner.
 Art. 471 CC.
 Art. 477 CC. Subject to the cases of unworthiness to inherit according to Art. 540 CC.
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