Renouncing a share of an inheritance

Renouncing a share of an inheritance

"My wife has only one son, whereas I have three children, five grandchildren and two great-grandchildren from my first marriage. In view of her wealth, we have agreed that she should waive her legal share of my estate. Does she have to mention her agreement in my will and initial it?

David, Geneva

Swiss law provides for the protection of the reserved portion of an estate, which is guaranteed to certain categories of heirs: descendants, parents and the surviving spouse or registered partner. A reserved heir can only be deprived of his reserve if he renounces it himself or if he is disinherited by the deceased in his will, which presupposes that he has committed a serious criminal offence or failed in an unacceptable manner in his duties towards the deceased or his family. Under article 471 of the Civil Code (CC), the surviving spouse is entitled to half of his or her inheritance; a descendant is entitled to three quarters.

The inheritance rights of the surviving spouse vary according to the parents with whom he or she is in competition, so that the fraction of the estate reserved for him or her also varies. In accordance with art. 462 of the Civil Code, the surviving spouse is in principle entitled to half of the estate where he or she is in competition with descendants. His reserve is therefore half of this half, i.e. one quarter of the estate.

As far as wills are concerned, any person who is capable of discernment and over 18 years of age is entitled to draw one up in order to dispose of his or her property by means of a simple, private, handwritten, dated and signed declaration, in compliance with the mandatory rules laid down by law, in particular hereditary reserves. That said, art. 495 of the Civil Code provides for the possibility of drawing up a pact of renunciation, i.e. a contract between the disposing person and an heir by which the latter renounces all or part of his or her future inheritance rights. Please note that such a contract of inheritance must be concluded before a public official (art. 512 CC).

Thus, you can only limit your wife's right of inheritance in your will to her reserved share of a quarter of your estate, and give your children an advantage by allocating the available portion to them. It will not be enough for her to countersign your last will and testament to waive her right to inheritance, and you will need to draw up an inheritance agreement by going to a notary. The same applies if you wish to favour your grandchildren and great-grandchildren by cutting into your children's inheritance reserve, which, as indicated, amounts to three-quarters of their own inheritance rights.