Doing Business In: RELOCATION TO SWITZERLAND: What you need to know about marital, inheritance, family and adult protection law

1. Overview

In our previous Focus On article about moving to Switzerland, we covered the main aspects of residence permits and taxation and marginally touched on marital and inheritance law. With this article we are now answering the following burning questions:

1. Will your foreign marriage be recognized in Switzerland? In the event of a divorce, what are the legal implications? Will the Swiss authorities be competent to deal with your divorce after you have moved? Which law is applicable?
2. Do foreign marriage contracts remain valid or do they require modification? What are the basic principles of Swiss matrimonial property law? Which law is applicable?
3. Is your foreign last will still valid or does it need to be amended? Is there a right to a compulsory portion in Switzerland? What applies regarding inheritance contracts? Which law applies?
4. What about patient decrees (living wills) and advance care directives?

 

2. Marital law

2.1 Recognition of marriages celebrated abroad

From a Swiss legal standpoint, a marriage that has been legally celebrated abroad will be recognised in Switzerland, unless it was entered into with the intention of circumventing Swiss provisions on the annulment of marriage (art. 45 Federal Act on Private International Law, hereinafter “PILA”).

Furthermore, foreign decisions or measures concerning the effects of marriage will be recognised in Switzerland if they were rendered:

1. in the state of domicile or habitual residence of a spouse; or
2. in the state in which the marriage was celebrated provided that the action cannot or cannot reasonably be expected to be brought in the state of domicile or habitual residence of a spouse (art. 50 PILA).

2.2 Jurisdiction

In accordance with article 46 PILA, the Swiss judicial or administrative authorities at the domicile of either spouse (or in the absence of a domicile, at the habitual residence of the spouses) have jurisdiction to hear actions or to order measures relating to the effects of marriage. This includes disputes about the personal relationships between the spouses and the external legal effects of the marriage. Examples of such effects are the organisation of the joint household and its dissolution, as well as the obligation to safeguard the marital and family well-being.

Consequently, the Swiss authorities at your place of domicile are competent to hear and order the above measures after your relocation, even if your marriage was celebrated abroad.

In the case of divorce or separation proceedings, the Swiss courts are competent:

1. at the domicile of the defendant spouse; or
2. at the domicile of the plaintiff spouse, provided that the plaintiff has been residing in Switzerland for at least one year or is a Swiss citizen (art. 59 PILA).

2.3 Applicable law

The legal effects of marriage are determined by the laws of the state in which the spouses are domiciled (art. 48 para. 1 PILA). Furthermore, divorce and separation proceedings are also subject to Swiss law if both spouses are domiciled in Switzerland (art. 61 PILA).

The subsequent effects of divorce and separation are governed by Swiss law, with the following exceptions:

1. you can declare foreign law to be applicable regarding your right of name (art. 37 para. 2 PILA);
2. you can also declare foreign law to be applicable regarding your matrimonial property regime (art. 52 para. 1 PILA);
3. furthermore, the child-parent relationship is subject to the laws of the state in which the child habitually resides (art. 82 para. 1 PILA).

In the event that neither parent is domiciled in the state of the child’s habitual residence and all are citizens of the same state, the law of that country will apply (art. 82 para. 2 PILA). Also, maintenance obligations between parents and children and between spouses are governed by the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations.

In connection with your relocation, you may therefore choose to submit your right of name and your matrimonial property regime to the laws of your home country after making an assessment of what is more convenient for you and your spouse or what has been previously agreed between both of you. The effects of marriage and the subsequent effects of divorce and separation will, however, be governed by Swiss law. Under Swiss law it is possible for the spouses to already settle the economic consequences of a divorce in advance. The court will usually approve the advance divorce convention if it is satisfied that the parties have freely agreed to it and that the convention is clear, complete and reasonable.

 

3. Matrimonial property law

3.1 Recognition of foreign decisions on matrimonial property relations

Foreign decisions relating to matrimonial property relations are recognised in Switzerland if they were rendered or are recognised:

1. in the state of domicile of the defendant spouse;
2. in the state of domicile of the plaintiff spouse, provided the defendant spouse was not domiciled in Switzerland;
3. in the state whose law applies to the matrimonial property relations pursuant to the PILA provisions; or
4. to the extent that they relate to immovable property if they were rendered or are recognised in the state in which the respective property is located (art. 58 para. 1 PILA).

 

3.2 Jurisdiction

In general, the Swiss courts or authorities at the domicile of a spouse are competent to settle the matrimonial property regime in case of death of one of the spouses or in case of divorce or separation (art. 51 PILA).

 

3.3 Applicable law

Matrimonial property relations are governed by the law chosen by the spouses (art. 52 para. 1 PILA). The choice of law must be agreed in writing or result with certainty from the provisions of a marriage contract (art. 53 para. 1 PILA). A marriage contract is valid as to its form if it satisfies the requirements of the law applicable to the contract or the requirements of the law of the place where the contract was concluded (art. 56 PILA).

With regard to matrimonial property law, you have the following options and may either declare as applicable:

1. the law of the state in which both, you and your spouse, are domiciled;
2. the law of the place of celebration of your marriage; or
3. the law of a state of which either of you is a citizen.

If, for example, the matrimonial property law of your home country is more advantageous, you can declare this law to be applicable by means of a choice of law clause in your marriage contract.

In the absence of a choice of law clause in a marriage contract concluded abroad, matrimonial property relations will be governed by Swiss law upon relocation to Switzerland (art. 54 para. 1 PILA). However, a choice of law can also be made after relocation with retrospective effect.

 

3.4 Swiss matrimonial property regimes in a nutshell

In accordance with Swiss legislation, three matrimonial property regimes are available, each of which determines the management of assets during the marriage and the division of assets in the event of divorce or death. These are:

1. Regime of participation in acquired property;
2. community of property; and
3. separation of property.

In the event of the death of a spouse, the matrimonial property settlement takes place as a first step before the settlement of the estate.

Participation in acquired property

In the absence of a marriage contract, the regime of participation in acquired property is the default regime and applies automatically under Swiss law (art. 181 Swiss Civil Code, hereinafter “SCC”). A distinction is made between the acquired property and the separate property of each spouse. The term “acquired property” refers to assets that a spouse has acquired for consideration during the marital property regime (art. 197 para. 1 SCC). A spouse’s individual property comprises personal effects used exclusively by that spouse, assets belonging to one spouse at the beginning of the marital property regime or acquired later at no cost by inheritance, gift or otherwise, claims for satisfaction and acquisitions that replace individual property (art. 198 SCC). It should be noted, however, that certain modifications can be made to the acquired property regime by means of a marriage contract. In the event of separation or death, each spouse or their heirs are entitled to one-half of the acquired property of the other spouse (after deduction of all debts and additions due to investments by the other spouse, so-called “surplus”; art. 215 SCC). Alternatively, a different share of the surplus may be agreed upon by marriage contract (art. 216 para. 1 SCC). Such an agreement may not violate the forced heirship rights of non-common descendants or their issue (art. 216 para. 3 SCC).

Community of property

Should you and your spouse wish to have a community of property, it is necessary to conclude a marriage contract. In accordance with Swiss legislation, to be valid a marriage contract must be notarised before a notary public and signed by both parties (art. 184 SCC). The community of property unites the assets and income of the spouses into common property, except for those assets which are legally defined as individual property. This includes items for exclusive personal use of one spouse and claims for satisfaction (art. 222 para. 1 SCC, art. 225 para. 2 SCC). In the event of the death of one spouse, half of the assets of the common property will remain with the surviving spouse and no claw-back will be possible. Forced heirship rights of descendants must be respected with regard to the other half of the common property which forms part of the estate.

Separation of property

Furthermore, a marriage contract may stipulate the separation of property between the spouses. In accordance with the law, each spouse will then administer and enjoy the benefits of his/her own property and has power of disposal over it (art. 247 SCC). This regime is often chosen if no sharing of assets between the spouses is desired, especially if one spouse is substantially wealthier than the other before the marriage or has an expectancy to become substantially wealthier during the marriage, e.g. by way of inheritance or income derived from a gainful activity or property.

 

4. Inheritance law

A revised version of the Inheritance Law Chapter of the PILA will come into force on 1 January 2025. The objective of the revision is to align Swiss law provisions with foreign private international law (e.g. the EU Succession Regulation) and to mitigate the risk of conflicts of jurisdiction between authorities in Switzerland and abroad.

4.1 Jurisdiction

In accordance with the current legislation, the Swiss judicial or administrative authorities at the deceased person’s last domicile have jurisdiction to take the necessary measures to settle his/her worldwide estate (art. 86 para. 1 PILA). The exclusive jurisdiction of a state where immovable property is located is reserved (art. 86 para. 2 PILA).

As of 1 January 2025, foreign nationals will have the option to submit their estate to the jurisdiction of the authorities of their home country by testamentary disposition or inheritance contract (art. 88b para. 1 new PILA). Furthermore, in the case of immovable property located abroad, Swiss jurisdiction can also be waived if the deceased has declared a property located abroad subject to the jurisdiction of his/her home country by testamentary disposition or inheritance contract and its authorities are dealing with it (art. 88b para. 2 new PILA).

If most of your assets remain in your home country following relocation to Switzerland, or if the estate can be settled more efficiently there, it may be beneficial to reassess whether it is advantageous to declare the foreign authorities as having jurisdiction to settle your worldwide estate. However, this should be carefully considered, as the same option does not exist in terms of the settlement of your matrimonial property regime, which could result in complex two-track procedures.

4.2 Applicable law

Choice of law

Foreign citizens residing in Switzerland may submit their estate by last will or inheritance contract to the law of one of their home countries (professio iuris) (art. 90 para. 2 PILA).

In accordance with Swiss doctrine, for a professio iuris to be valid, it must be evident from the testamentary disposition that the testator was aware that his/her citizenship law would apply to the estate. If a foreign person with a domicile in Switzerland does not make a choice of law with respect to his/her estate, his/her worldwide estate will be governed by Swiss law (art. 90 para. 1 PILA).

The applicable law determines the composition of the estate, the beneficiaries, and the extent of their entitlements. It also defines the liability for the estate’s debts, the legal remedies available, and the measures that may be ordered, subject to specific requirements (art. 92 para. 1 PILA). The implementation of the measures is subject to the law of the state with jurisdiction. This law governs, among other things, conservatory measures and the administration of the estate, including the administration by an executor (art. 92 para. 2 PILA).

Should you elect to have foreign law apply to your worldwide estate, the substantial validity, revocability and interpretation of a testamentary disposition, along with the effects of the instructions contained therein, will also be governed by your chosen law (art. 94 para. 2 new PILA). The same applies to inheritance contracts (art. 95 para. 2 new PILA).

Swiss forced heirship law is not of public order. Consequently, foreign provisions that deviate from Swiss forced heirship law are usually valid, provided that a valid choice of law exists, and the testator is not a Swiss citizen.

Form of testamentary dispositions

Switzerland is a contracting state of the Hague Convention of 5 October 1961 on the Conflict of Laws relating to the Form of Testamentary Dispositions (Hague Convention). In international inheritance matters, the Convention facilitates the recognition in Switzerland of a testamentary disposition made in accordance with foreign law as valid regarding its form. The form of a testamentary disposition is valid in Switzerland if it complies with the national law of the place where the testator made the testamentary disposition, of a state of which the testator was a national at the time of making the testamentary disposition or a place in which the deceased was domiciled at the time he made his testamentary disposition (art. 1 Hague Convention).

4.3 Swiss inheritance law in a nutshell

Legal heirs

If a testator has not drawn up a last will or an inheritance contract, or if incomplete testamentary dispositions need to be completed, the statutory succession rules set out in Article 481, paragraph 2 of the SCC apply.

According to these rules, the legal heirs are the relatives of the deceased, their spouse or registered partner and, if none of these exist, the public community (cf. art. 457 et seq. SCC). A legal heir is not automatically entitled to his/her full share of the estate. The testator has the right to freely dispose of his/her estate within the limits of the rules of forced heirship. This means that the testator can also appoint non-legal heirs as heirs (so-called appointed heirs).

If a testator is survived by descendants, they are each entitled to an equal share of the estate. Descendants also include adopted children (art. 267 para. 1 SCC) and the testator’s legitimate children. Stepchildren are not descendants in the legal sense.

If there are no surviving descendants, the inheritance passes to the parental line (art. 458 para. 1 SCC). If the testator leaves neither descendants nor heirs of the parental line, the inheritance passes to the line of the grandparents (art. 459 para. 1 SCC). The legal succession of relatives ends with the line of the grandparents (art. 460 SCC).

If the testator leaves a surviving spouse, the spouse is also entitled to a certain share of the estate as a legal heir. If there are surviving descendants, they are entitled to half of the estate. If they have to share the estate with heirs of the parental line, they are entitled to three-quarters of the total estate. If there are no heirs in the parental line, the surviving spouse is entitled to the entire estate (Art. 462 SCC). This rule also applies by analogy to the registered partner.

Forced heirship rules

The descendants, as well as the spouse or registered partner, are entitled to a compulsory portion (art. 471 SCC). The following persons are protected by forced heirship rules and receive specific compulsory portions:

1. descendants (children, grandchildren, great-grandchildren, etc.): half of the legal portion
2. spouses or registered partners: half of the legal portion

The statutory compulsory portions amount to a maximum of half of the total estate. The other 50% is the portion at free disposal of the testator.

If there are no heirs protected by a compulsory portion, the testator can freely dispose of his/her whole estate.

 

5. Adult protection law (advance care directive / patient decree)

5.1 In Switzerland, it is common practice to execute an advance care directive and a patient decree to facilitate better self-determination and to prevent third parties from interfering in personal, medical and financial matters in the event that an individual is no longer capable of making decisions. These measures are part of the adult protection law. Jurisdiction and applicable law

In respect of the protection of adults, the jurisdiction of the Swiss judicial or administrative authorities, the applicable law as well as the recognition and enforcement of foreign decisions or measures are governed by the Hague Convention of 13 January 2000 on the International Protection of Adults (herein after “Hague Convention”) (art. 85 para. 2 PILA).

The Hague Convention provides for the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not able to protect their interests. The Hague Convention ensures that a power of representation has force of law in another contracting country. It covers not only official protective measures but also powers of attorney, including advance care directives. Generally, advance care directives are governed by the law of the person’s habitual residence unless another law is explicitly chosen, such as the law of the person’s nationality or a former residence (art. 15 para. 1 and 2 Hague Convention). The Hague Convention also covers patient decrees that grant power of representation for medical decisions. However, directives specifying which medical treatments a person consents to in case of incapacity are not covered by the Convention on Protection of Adults and are subject to the laws of the country where they are applied.

Once you have relocated to Switzerland, you may find that the law of your home country is applied with regard to your advance care directive and the representation provisions in your patient decree. However, this can also result in discrepancies, as the manner in which authority of representation is exercised in an advance care directive and in a patient decree will be subject to Swiss law (art. 15 para. 3 Hague Convention). It is therefore advisable to prepare a separate advance care directive and patient decree in Switzerland.

5.2 Swiss advance care directive and patient decree in a nutshell

5.2.1 Advance care directive

In accordance with Swiss legislation, an individual with the capacity to act may appoint a natural person or legal entity to assume responsibility for his/her personal care or the management of assets, or to act as legal agent in the event of his/her incapacity. It is also possible to appoint multiple individuals or legal entities concurrently for different matters. In the absence of an advance care directive, a spouse is typically authorised by law to act as a representative. In the event that the person lacking capacity is not married or that his/her spouse does not, or is unfit, to represent the interests of the incapacitated person, the adult protection authority will intervene and appoint a representative.

To be valid, the advance care directive must be handwritten in its entirety, including the place and date, and signed or notarised before a notary public.

Upon request, the Civil Register Office records in the central database that a person has executed an advance care directive and the location where it is stored.

The appointee may terminate his/her mandate under the advance care directive at any time, subject to providing two months’ written notice to the adult protection authority. In exceptional circumstances, the appointee may also terminate the directive without notice.

5.2.2 Patient Decree

In addition to the advance care directive, the patient decree provides an effective means of enhancing self-determination and preventing third parties from interfering in medical matters or burdening family members from making difficult medical decisions for their loved ones. A person who is capable of making decisions may set out in a patient decree which medical procedures he/she consents to or declines if he/she loses the capacity to make decisions.

To be valid, the patient decree must be signed, and the place and date inserted. It is not necessary for the patient decree to be publicly notarised or handwritten.

The individual who has executed a patient decree may request that this information be included on his/her health insurance card. Furthermore, a copy of the patient decree can be stored with the attending physician and the designated healthcare proxy.

In the event that a person lacking capacity or judgement has not provided instructions regarding treatment in a patient decree, the attending doctor will plan the required treatment in consultation with the person legally entitled to act as representative in relation to medical procedures. In accordance with the cascade arrangement under Swiss law, this may include:

1. a person appointed in a patient decree;
2. a spouse or registered partner;
3. a cohabiting partner;
4. descendants;
5. parents;
6. siblings

 

6. Conclusion

When relocating to Switzerland, you should carefully assess whether your marriage contract, your last will or your advance care directive and patient decree still reflect your wishes or need to be amended, or if you have none, whether you should implement such documents to better protect you and your family.

“The past is given; the future is yet in your hands.”

 

Authors:  Patricia Guerra, Partner, Head of Private Clients Zurich; Oliver Arter, Of Counsel; Fabienne Häusermann, Associate, are part of MLL Legal’s distinguished Private Clients Team with a proven track record in assuring a smooth transition to Switzerland.