Under Swiss inheritance law, children and spouses (and, in some cases, parents until 1 January 2023) enjoy compulsory portion protection. In principle, they must receive a specified minimum share of the estate.
Compulsory portions
Compulsory portions depend on the relationship. Children were entitled to at least ¾ of their statutory share, reduced to ½ from 1 January 2023. Under the former rule used in this example, if they would inherit 500'000 CHF without a will, at least 375'000 CHF must be left to them. Otherwise, after your death they can challenge the will and claim the shortfall from the other heirs. A spouse's compulsory portion is ½ of their statutory share. You can therefore reduce these heirs' shares, but not below the applicable compulsory portions.
For example, you leave 1'000'000 CHF, a wife and two children. Without a will, your wife receives half and the children the other half (one quarter each). To leave something to your sister or best friend, you need a will reducing your statutory heirs' shares. In the article's example, based on the former compulsory portions, your wife must receive at least 250'000 CHF instead of 500'000 CHF (500'000 * ½), and your children at least 375'000 CHF in total, or 187'500 CHF each instead of 250'000 CHF (250'000 * ¾). This leaves 375'000 CHF available for your sister or friend. This is the disposable portion; compulsory portions prevent you from freely disposing of more.
Disinheritance
To dispose freely of more than the disposable portion, you would need an inheritance waiver agreement with the statutory heirs or valid grounds to disinherit one of them. Swiss law sets strict conditions: a family argument is insufficient. More serious grounds, exhaustively defined by law, are required. The two types are punitive and protective disinheritance.
Punitive disinheritance
Punitive disinheritance is disinheritance as a sanction. It covers two grounds: an offence or a breach of family-law duties.
Disinheritance for an offence requires more than a parking fine. It must involve a serious offence against the testator or someone close to them. Serious bodily injury to the testator or their child would, for example, constitute sufficient grounds. Criminal prosecution is not required.
Disinheritance for breaches of family-law duties towards the testator or their relatives applies only to duties expressly established by Swiss law, such as support obligations between relatives or spouses. Breaches of etiquette or disappointed expectations are insufficient.
Protective disinheritance
Unlike punitive disinheritance, protective disinheritance cannot remove the entire inheritance. At most half of the compulsory portion can be withdrawn. It is not intended to punish the heir, but to prevent the inheritance passing directly to their creditors.
Protective disinheritance is available only against descendants, not spouses, who at the opening of the succession have outstanding certificates of loss exceeding one quarter of their inheritance. The withdrawn half of the compulsory portion must pass to their descendants. They must therefore have children or potentially have children in future.
Protective disinheritance can therefore reduce a descendant's share below the compulsory portion, but the withdrawn share must go to that person's descendants (the testator's grandchildren). It does not increase the disposable portion.
How do I disinherit someone where valid grounds exist?
Disinheritance must be ordered clearly in a testamentary disposition, such as a will or inheritance agreement, including an inheritance waiver agreement. Whether it may be ordered in anticipation of a future ground remains disputed. The testator would still need to specify the grounds precisely.
How can I revoke disinheritance?
The simplest way to revoke disinheritance is to prepare a new, revised testamentary disposition. Forgiveness without revoking the disposition generally only enables the disinherited person to bring an action for reduction, in which they must prove forgiveness. This may be particularly difficult if forgiveness was only verbal.
Disinheritance is possible only in a few situations. State the grounds as clearly as possible in your testamentary disposition. Contact us to establish which grounds qualify and explore other ways to distribute your estate according to your wishes.