The forced share (réserve héréditaire) is the minimum portion of the estate that Swiss law guarantees to certain close heirs, regardless of the wishes of the deceased expressed in a will or succession agreement. The disposable portion is, conversely, the share of which the testator may freely dispose in favour of whoever they wish. The reform that entered into force on 1 January 2023 has profoundly changed these balances, significantly increasing testamentary freedom. PBM Avocats in Geneva and Lausanne assists clients in succession planning taking account of these new rules.
The System of Forced Heirship Before and After 2023
The 2023 Swiss succession law reform made two fundamental changes:
| Protected Heir | Forced Share Before 2023 | Forced Share Since 2023 |
|---|---|---|
| Descendants (children, grandchildren) | 3/4 of legal share | 1/2 of legal share |
| Surviving spouse / registered partner | 1/2 of legal share | 1/2 of legal share (unchanged) |
| Father and mother | 1/2 of legal share | Abolished (no forced share since 2023) |
Legal Shares of Heirs (Arts. 457–466 SCC)
To calculate the forced share, the legal shares must first be known. The SCC provides for the following succession orders:
- 1st order: descendants (children, grandchildren) — share among themselves according to the principle of representation;
- 2nd order: father, mother and their descendants (brothers, sisters) — inherit only if no descendant of the deceased exists;
- 3rd order: grandparents and their descendants — inherit only if the first 2 orders are empty.
The surviving spouse or registered partner competes with descendants (legal share: 1/2) and with heirs of the 2nd order (legal share: 3/4). They inherit alone in the absence of heirs of the first two orders (the entire estate).
Calculation of the Disposable Portion According to Situation
The disposable portions according to the most common family configurations are as follows:
| Family Configuration | Total Forced Share | Disposable Portion |
|---|---|---|
| Spouse + 2 children | 1/4 (spouse) + 1/4 (children) = 1/2 | 1/2 |
| Only 1 child (no spouse) | 1/2 of legal share (1) = 1/2 | 1/2 |
| Only spouse (no children, no parents) | 1/2 of legal share (1) = 1/2 | 1/2 |
| Only parents (no spouse, no children) | 0 (since 2023) | 1 (entirety) |
| No spouse, no children, no parents | 0 | 1 (entirety) |
The Calculation Mass for Forced Shares
The calculation of forced shares is not carried out solely on the value of the estate at death. A calculation mass must be reconstituted which comprises:
- The net value of the estate assets (assets less liabilities);
- Lifetime gifts made by the deceased (donations, advances on inheritance) which must be brought back into account or offset against the disposable portion;
- Life insurance policies taken out for the benefit of a beneficiary (if they exceed customary premiums);
- Family foundations or other gratuitous acts of attribution.
If lifetime gifts have impaired the forced shares, protected heirs may bring a reduction action against the beneficiaries of these gifts.
Practical Implications of the 2023 Reform for Succession Planning
The 2023 reform offers new planning opportunities:
- Increased protection for de facto partners: the wider disposable portion allows more to be bequeathed to an unmarried partner;
- Facilitated business transfer: in the event of takeover by one child, the other heirs may receive their (reduced) forced share rather than their full legal share, facilitating concentration of the business;
- Increased gifts to third parties (associations, foundations, friends);
- Combined with a succession agreement, the reform allows flexible and secure succession planning.
The tax aspects of the estate must also be taken into account: the taxation of estates varies according to canton (Geneva and Vaud exempt direct descendants) and according to the heirs designated.
Frequently Asked Questions on Forced Heirship in Switzerland
Who are the protected heirs since the reform of 1 January 2023?
Since the reform that entered into force on 1 January 2023, the protected heirs are: (1) descendants (children, grandchildren) with a forced share of 1/2 of their legal share; (2) the surviving spouse or surviving registered partner with a forced share of 1/2 of their legal share. Father and mother have lost their right to a forced share since 2023 (they remain legal heirs but without a forced share). This reform significantly increases the testator's disposable portion.
How is the disposable portion calculated in the presence of a spouse and two children?
In the presence of a spouse and children, the estate is legally divided equally between the spouse and the descendants (art. 462 SCC). The legal share of the spouse is therefore 1/2 of the estate, of which the forced share is 1/2 of 1/2 = 1/4. The legal share of the children is 1/2, of which the forced share is 1/2 of 1/2 = 1/4. The disposable portion is therefore 1/2 (= 1 - 1/4 spouse - 1/4 children). Concrete example: for an estate of CHF 1 million, the testator may freely dispose of CHF 500,000.
What does the reduction in the forced share introduced in 2023 mean?
Before 1 January 2023, the forced share of descendants was 3/4 of their legal share, and parents were entitled to a forced share of 1/2 of their legal share. Since 2023, the forced share of descendants has been reduced to 1/2 of their legal share, and the forced share of parents has been abolished. In practice, this means that the testator's disposable portion has doubled when they have only children as protected heirs. This reform aims notably to better protect a de facto partner (cohabitant) and to facilitate the transfer of businesses.
Do lifetime gifts factor into the calculation of the forced share?
Yes, for the calculation of the forced share, a calculation mass is constituted which includes lifetime gifts made by the deceased (donations, advances on inheritance). These gifts are added to the value of the net estate to form the calculation mass, and then the forced shares are calculated on this total mass. Thus, a significant gift made during the deceased's lifetime may reduce the disposable portion and expose the donor to a reduction action if the forced shares are impaired.
Can a protected heir waive their forced share during the testator's lifetime?
Yes, but only through a succession agreement (art. 512 SCC), which must be executed in authentic form before a notary. A simple private document or informal waiver of the forced share is not valid. The waiver may be total (waiver of the entire legal share) or partial (waiver of the forced share only). It may be onerous (in exchange for payment of a sum) or gratuitous. This mechanism is often used in succession planning for family businesses.