New International Inheritance Law

The most important new features are outlined below:

Innovations in the area of international jurisdiction

According to the EU Succession Regulation, the authorities and courts at the last habitual residence have primary jurisdiction over the entire estate. If this place is in a third country, the member state is nevertheless competent if assets forming part of the estate are located in that member state and the deceased was either a national of that member state or had her/his former habitual residence in such member state within the last 5 years. If this is not the case, there is limited jurisdiction over the assets located in the member state.

The Swiss PIL generally provides for the jurisdiction of the authorities and courts at the last place of residence. If the deceased was not domiciled anywhere (including abroad), the habitual residence (in Switzerland) is used as a subsidiary basis. The jurisdiction of the state, in which property is located, remains reserved if such state considers itself to have exclusive jurisdiction.

With the new law, the jurisdiction of Swiss authorities and courts can now be excluded under certain conditions, even if the person resides in Switzerland:

Foreign testators residing in Switzerland now have the option of submitting their inheritance matters (in whole or in part) to the jurisdiction of their home country. The prerequisite for such an exclusion of Swiss jurisdiction is that the testator is a foreign national either at the time of the disposition (last will and/or inheritance contract) or at the time of death. In these cases, Swiss authorities only have jurisdiction if the foreign state does not deal with the estate (see below).

In addition, according to the new law, Swiss nationals domiciled abroad may also – despite choosing Swiss law (i.e. the law of their home country) – expressly establish foreign jurisdiction (by making a corresponding reservation) or exclude Swiss jurisdiction. This means that Swiss nationals living abroad can now subject their estate (or assets located in Switzerland) to Swiss law while at the same time reserve the jurisdiction of the relevant foreign country of residence (so-called opting out). However, the Swiss authorities retain jurisdiction if (i) Swiss jurisdiction is expressly stipulated or (ii) Swiss law is chosen as the applicable law and either Swiss jurisdiction is expressly stipulated or the jurisdiction is not stipulated at all.

If Swiss nationals living abroad have chosen neither jurisdiction nor applicable law, the Swiss authorities would only have jurisdiction if the foreign authorities at the last place of residence are not already dealing with the estate. In order to avoid conflicts of jurisdiction, the Swiss authorities may also decline jurisdiction in certain cases provided for by law, namely if foreign authorities are dealing with the estate.

Another new feature as of 1 January 2025 is that both Swiss and foreign nationals can submit foreign properties to the jurisdiction of the respective country of location.

Despite these welcome changes, it should be noted that it is still unclear if the involved jurisdictions will accept the rules of the jurisdiction that has been decided upon.

Innovations in the area of applicable law

According to the EU Succession Regulation, the law of the last habitual residence of the deceased is generally applicable. In addition, the EU Succession Regulation allows for a choice of law in favor of the law of the country of origin, regardless of whether it is the law of a member state or a third country such as Switzerland. The Swiss PIL in turn bases the applicable law on the deceased’s last place of residence.

In Switzerland, not only foreign nationals but also Swiss dual nationals can now subject their estate (in full or – for Swiss dual nationals – under certain circumstances also in part) to one of their laws from their country of origin. The nationality of the chosen law must exist either at the time of the disposition (last will and/or inheritance contract) or at the time of death. It should be noted, however, that despite the new option of choosing the law of a country of origin, Swiss dual nationals cannot waive the right to a compulsory portion. This means that their freedom of disposal is restricted due to the protection of certain heirs’ compulsory portions, regardless of the choice of law.

Such a choice of law of the country of origin by Swiss dual nationals is associated with many ambiguities and questions of interpretation regarding the scope of this reservation. For example, it is unclear whether the reservation can be circumvented by choosing the jurisdiction and applicable law of the second home country – the authority of this country, which applies its law, will hardly be concerned with Swiss compulsory portion claims.

The possibility for Swiss nationals living abroad to make a partial choice of law for their Swiss assets remains, provided that this law is chosen in connection with Swiss jurisdiction. Otherwise, an (implied) choice of Swiss law is presumed if the Swiss authorities and courts have jurisdiction in the sense of home jurisdiction, unless the testator has stated otherwise.

If there is no choice of law, the estate of a person residing abroad is subject to the law to which the conflict of laws of that country refers. In order to prevent endless referrals or re-referrals, it is now clarified that the substantive inheritance law of the country of residence is applicable in the event of a re-reference to Swiss conflict of laws.

Clarifications on the executor and administrator of the estate

The new PIL also contains clarifications on the applicable law for the executor and estate administrator appointed by Swiss authorities in the event that foreign inheritance law is applicable. It stipulates that Swiss law also applies in principle to the procedural aspects of the execution of wills and to the executor’s power of disposal over the estate. This applies regardless of which law is applicable to the estate as such.

With the amendments to the PIL and the extended party autonomy, testators will have more options for their (international) estate planning. Nevertheless, or perhaps precisely because of this, (international) estate planning is becoming increasingly complex. If you have any further questions about your estate planning, we will be happy to assist you in choosing a customized approach.