The reduction action is the judicial remedy by which a protected heir whose reserved share has been infringed requests the reduction of testamentary dispositions or inter vivos gifts that encroach on their guaranteed share. Governed by art. 522 to 533 CC, it constitutes the essential protective instrument for protected heirs (descendants, spouse or registered partner) against excessive gifts by the deceased. PBM Avocats in Geneva and Lausanne regularly represents heirs in these delicate proceedings.
Conditions of the Reduction Action (art. 522 CC)
The reduction action requires the following conditions to be met:
- The status of protected heir of the claimant: descendants, spouse or registered partner (since 2023; parents are no longer protected heirs);
- An infringement of the reserved share: testamentary dispositions or inter vivos gifts, taken together, exceed the freely disposable portion;
- Opening of the succession: the action may only be brought after the death of the testator;
- Compliance with the one-year limitation period from awareness of the infringement (art. 533 CC).
Gifts Subject to the Reduction Action (art. 527 CC)
Art. 527 CC lists the categories of inter vivos gifts that are reducible if they infringe the reserved shares:
| Category of Gift | Condition for Reduction | Legal Basis |
|---|---|---|
| Advances on inheritance (donations to heirs) | Always subject to collation, without time limit | Art. 527 no. 1 CC |
| Gifts in favour of the future spouse | Marriage contract or donations before marriage | Art. 527 no. 2 CC |
| Donations with reservation of usufruct or enjoyment | Always reducible | Art. 527 no. 3 CC |
| Donations to third parties (non-heirs) | Made within 5 years before death, or intention to frustrate protected heirs | Art. 527 no. 4 CC |
Order of Reduction of Dispositions (art. 532-533 CC)
The reduction does not proceed arbitrarily: art. 532 CC sets a precise order:
- 1st: reduction of testamentary dispositions (legacies, designations as heir), proportionally;
- 2nd: if testamentary reductions are insufficient, reduction of inter vivos gifts in reverse chronological order (most recent first).
The beneficiary of a reduced gift may avoid restitution in kind by paying the reduction value in cash (art. 530 CC), which is often preferable for assets that are difficult to divide (company shares, works of art).
The Calculation Basis for Reserved Shares
To determine whether the reserved shares are infringed, a calculation basis is established according to the following steps:
- Step 1: Calculate the net value of the estate (assets minus liabilities) at the date of death;
- Step 2: Add inter vivos gifts subject to collation (art. 475 and 527 CC);
- Step 3: Calculate the reserved shares and freely disposable portion on this total basis;
- Step 4: Compare testamentary dispositions and gifts with the freely disposable portion;
- Step 5: If the freely disposable portion is exceeded, calculate the reduction amount.
Limitation Period and Procedural Strategy
The one-year period to bring the reduction action begins to run as soon as the heir has actual knowledge of the infringement, i.e. when they know that the estate or gifts exceed the freely disposable portion and that their reserved share is infringed. This period may be interrupted by a conciliation request or legal action. PBM Avocats recommends acting promptly at the first signs of a potential infringement of the reserved share, particularly after the opening of a will that favours a third party or a legatee to the detriment of protected heirs. Coordination with the fiscal aspects of the succession is also essential.
Frequently Asked Questions About the Reduction Action in Inheritance Law
Within what period must the reduction action be brought under Swiss law?
The reduction action is subject to a limitation period of one year from the day the heir became aware of the infringement of their reserved share (art. 533 para. 1 CC). This period begins to run as soon as the protected heir knows that dispositions or gifts have encroached on their reserved share. An absolute period of 10 years from the opening of the succession applies in all circumstances. These are limitation periods (not forfeiture periods) and may therefore be interrupted. It is imperative to consult a lawyer without delay.
How is the reduction amount calculated in case of infringement of the reserved share?
The reduction amount corresponds to the excess of the gift over the freely disposable portion. The calculation basis includes the net value of the estate at death and the inter vivos gifts subject to collation. The reduction applies first to testamentary dispositions (legacies, designations as heir), then if necessary to inter vivos gifts in reverse chronological order (the most recent are reduced first). The reduction is applied proportionally if several dispositions exceed the freely disposable portion.
Can the reduction action target donations made more than 5 years before death?
In principle yes, as art. 527 CC does not provide a general time limit for gifts subject to reduction. However, certain exceptions exist: gifts made to third parties (non-heirs) more than 5 years before death are only subject to collation if the donor clearly reserved the right to revoke them or intended to circumvent the reserved share. In contrast, inter vivos gifts made to statutory heirs as advances on inheritance (avancements d'hoirie) are subject to collation without time limit (art. 475 CC).
Can the reduction action be brought against a foundation or beneficiary association?
Yes. The reduction action may be directed against any beneficiary of a gift, whether a natural person, company, foundation or association. If the beneficiary is insolvent or has already consumed the assets received, the protected heir may turn against bad-faith sub-purchasers. The beneficiary's good faith is not a defence against the reduction action itself, but may influence the terms of restitution.
Does the reduction action also apply to life insurance policies designated outside the estate?
The question is delicate and has been the subject of nuanced case law. In principle, life insurance benefits paid at death to a designated beneficiary (within the meaning of art. 77 et seq. ICA) do not form part of the estate and cannot directly be subject to the reduction action. However, if the premiums paid were excessive relative to the deceased's means and thus impoverished the estate to the detriment of protected heirs, a reduction action may be considered. Federal Supreme Court case law is restrictive but has admitted this possibility in extreme cases.