New developments in international inheritance law

Status update with Anthony Braham.

Which Law Can a Will Be Subject to in Switzerland?

How Can Heirs Transfer Assets if They Are Located Abroad?

What Happens if a Will Is Subject to Foreign Law, but the Testator Was a Swiss Resident at the Time of Death?

These are just some of the questions that Switzerland’s Federal Act on Private International Law (LDIP) is meant to address. The chapter concerning succession law has been revised and was approved by the Swiss Parliament on December 22, 2023.

The revision has two main objectives:

• To modernize Swiss international succession law, notably by codifying certain case law practices.
• To align it with legal developments abroad, particularly following the adoption of EU Regulation No. 650/2012, which has been in effect since 2015 and introduced the European Certificate of Succession.

Additionally, the amendment aims to increase the autonomy of the parties involved and reduce the risk of jurisdictional conflicts between Swiss and foreign authorities, whether during the probate process (the issuance of the certificate of inheritance) or during the division of the estate and related legal disputes regarding the will or its provisions.

One of the key debates in Parliament focused on the choice of applicable law (professio juris).

Choosing the Applicable Law

Currently, a person living in Switzerland who holds both Swiss and foreign nationality cannot subject their will to foreign law. Swiss law necessarily applies.

However, it is common for expatriates who have lived in Switzerland for many years to acquire Swiss nationality. Under the current rule, if their will is subject to foreign law or references foreign legal concepts, it could be partially or entirely invalidated.

Greater Freedom to Choose, but with Limits

Initially, the draft law proposed by the Swiss Federal Council removed all restrictions, granting complete freedom to testators.

However, when Parliament reviewed the bill in the autumn of 2023, it determined that the concept of forced heirship is a fundamental principle of Swiss succession law.

As a result, the final version approved on December 22, 2023, while allowing foreign nationals who also hold Swiss nationality to choose a foreign law, introduced a limitation: a will subject to foreign law cannot override Swiss forced heirship rules.

Under Swiss law, forced heirs include a person’s descendants (children) and the surviving spouse. The reserved share depends on family composition but can account for up to 50% of the entire estate.

The new law will nonetheless allow the use of foreign legal concepts that are currently prohibited, such as the testamentary trust, a structure widely used in Anglo-Saxon jurisdictions for its advantages in asset independence and third-party management.

Expected Implementation in 2025

As of the date of this article, the Swiss Federal Council has not yet set the implementation date for the new Articles 51, 58, and 86 to 96 of the LDIP.

According to available information, the new provisions are expected to come into effect in 2025. This article will be updated as soon as the official date is announced.