Pact of inheritance and bequest under Swiss law

Swiss inheritance law offers a range of tools for organizing one’s estate, including inheritance agreements and bequests. Although these two legal instruments can be used to plan the transfer of one’s estate, they have distinct characteristics and effects. An inheritance agreement is a bilateral contract between the donor and his or her heirs, and differs from a bequest, which is a unilateral disposition mortis causa. This in-depth analysis explores the specific features, advantages and limitations of each, as well as how they relate to estate planning in Switzerland.

Definition and legal nature of an inheritance agreement

A pact of inheritance is a contract by which one person undertakes to another to leave him his estate or a legacy. It is a bilateral deed that is binding on the parties during their lifetime, and takes effect on the death of the person making it. In Swiss law, inheritance agreements are governed by articles 494 et seq. of the Civil Code.

Unlike a will, which is a unilateral act that can be revoked at any time, a covenant of inheritance is irrevocable. This makes it a powerful estate planning tool, offering greater legal certainty to the parties involved.

Inheritance agreements can take various forms:

• Attributive agreement: the donor undertakes to leave all or part of his estate to an heir.
• Pacte abdicatif: an heir renounces all or part of his inheritance rights
• Family covenant: several members of a family settle their estate together

The validity of an inheritance agreement is subject to strict formal requirements. It must be concluded before a notary in the presence of two witnesses. This solemnity is designed to ensure that the parties are able to reflect on the agreement and to prevent abuse.

Characteristics and effects of legacies under Swiss law

A bequest, on the other hand, is a disposition mortis causa whereby the testator assigns one or more specific assets from his or her estate to a specific person. Unlike an inheritance agreement, a bequest is a unilateral act that can be revoked or modified at any time by the testator.

Under Swiss law, legacies are governed by articles 484 et seq. of the Civil Code. It may concern :

• A specific asset (movable, immovable, sum of money)
• A real right (usufruct, easement)
• A claim

The legatee is not an heir in the strict sense of the term. He has a claim against the succession to obtain the bequeathed property, but is not liable for the deceased’s debts. This distinction is fundamental to understanding the scope and limits of legacies in relation to inheritance agreements.

The bequest takes effect on the death of the testator, but the legatee must ask the heirs to deliver it. In the event of refusal, the legatee has a right of action for delivery of the legacy.

Advantages and limitations of bequests

Bequests offer several advantages:

• Flexibility: the testator can modify it at any time
• Simplicity: it can be included in a holograph will
• Precision: it can be used to allocate specific goods

However, bequests also have their limits:

• Legal uncertainty: risk of revocation by the testator
• Limited scope: cannot be used to settle the entire estate
• Risk of contestation: by the heirs with right of retention if the bequest affects their right of retention

Comparison of inheritance agreements and bequests

Inheritance agreements and bequests differ in several fundamental respects:

• Legal nature: an inheritance agreement is a bilateral contract, while a legacy is a unilateral disposition.
• Revocability: a covenant of inheritance is irrevocable unless the parties agree, whereas a legacy is freely revocable.
• Form: covenants as to inheritance require authentication, while legacies can be included in holograph wills.
• Scope: a contract of inheritance may cover the entire estate, while a bequest relates to specific assets.
• Effects: a contract of inheritance is binding on the parties during their lifetime, while a bequest is only effective upon death.

These differences have significant practical implications for estate planning. The choice between these two instruments will depend on the disposant’s objectives, the composition of his assets and his family relationships.

The relationship between inheritance agreements and bequests in estate planning

In practice, inheritance agreements and bequests can be combined to optimize estate planning. For example:

• A contract of inheritance may provide for the allocation of the available portion to an heir, while including specific bequests to other persons.
• An abdicative pact can be signed with certain heirs, enabling the assets concerned to be bequeathed to other beneficiaries.
• A family pact can divide up the bulk of the estate, while leaving open the possibility of bequests for specific assets.

This articulation allows you to benefit from the advantages of each instrument:

• Legal certainty for the main provisions of the inheritance agreement
• Bequest flexibility for specific allocations

Nevertheless, it is vital to ensure that all the provisions are consistent and that hereditary reserves are respected.

Limits and precautions

The relationship between inheritance agreements and bequests requires special attention:

• Risk of contradiction between provisions
• Increased estate complexity
• Precise, unambiguous wording required

Legal support is often required to guarantee the effectiveness and validity of these combined provisions.

Current and practical implications for Swiss law

Estate planning in Switzerland is constantly evolving, influenced by social and economic changes. The combined use of inheritance agreements and legacies is part of this trend, responding to the need for flexibility and legal certainty.

Several factors are contributing to the growing interest in these tools:

• More complex family structures (blended families, common-law unions)
• Internationalization of heritages
• Increasing longevity and the challenges of dependency
• Transfer of family businesses

In this context, mastery of the legal intricacies of inheritance agreements and legacies becomes essential. Legal practitioners, in particular specialized lawyers, play a key role in developing tailor-made estate strategies.

In particular, our legal support enables you to :

• Evaluate the suitability of each tool for your personal and financial situation
• Draft precise clauses that comply with Swiss law
• Anticipate potential conflicts and provide resolution mechanisms
• Optimize inheritance taxation in compliance with the law

Recent case law from the Swiss Federal Supreme Court regularly clarifies the interpretation and application of these inheritance provisions. Constant legal monitoring is essential to guarantee the effectiveness of our strategies.

In short, the combination of inheritance agreements and bequests offers extensive estate planning possibilities under Swiss law. This tailor-made approach meets the needs of a changing society, where the transfer of wealth involves complex personal, family and economic issues. Our mastery of these legal tools, combined with a detailed analysis of individual situations, enables us to develop estate solutions that are both secure and adaptable.