Notary Office Beeler & Marbacher in Lucerne

Not all heirs are fortunate enough to inherit substantial assets. Often, there are estates that are insolvent, or where it is uncertain if anything will remain after debts and probate costs are paid. What options are available to clarify matters or reduce risk before deciding on whether to accept an inheritance?

Options

a) Each heir has the right to disclaim their inheritance without providing any justification. If the liabilities of an estate exceed its assets, the inheritance is considered insolvent. In such cases, all heirs typically disclaim the inheritance within the legal period of 3 months (from the date of death or the opening of the will). If the deceased was officially declared insolvent or obviously insolvent at the time of death, the law may presume a disclaimer. In these cases, an explicit disclaimer is not required but is generally advisable to prevent misunderstandings. Depending on the canton, the disclaimer must be declared to the probate or inheritance office or to the court.

b) If there is uncertainty regarding the estate’s net value, each heir may request the preparation of a public inventory before deciding on whether to accept or disclaim the inheritance. The public inventory must be requested within one month of the death, either from the court or the probate or inheritance office, depending on the canton.

c) The third option is to request official liquidation of the estate within the disclaimer period. This generally requires the consent of all heirs or a formal application. The requirements are similar to those for requesting a public inventory. In special cases (e.g., at the request of a creditor), the authorities may initiate official liquidation without the heirs’ objection.

If all heirs disclaim the inheritance, the estate will undergo liquidation by the bankruptcy office.

Consequences

a) By disclaiming the inheritance, a statutory heir forfeits their share, which then passes as if they had predeceased the decedent. If the disclaiming statutory heir has descendants, they assume the heir’s place. Minor descendants, if applicable, must also disclaim in a similar manner.

However, if an appointed heir disclaims without any alternative provisions in the will, their share passes to the decedent’s statutory heirs.

b) A public call for claims is issued with the preparation of the public inventory (listing both assets and liabilities). Based on the claims from public records, documentation, and information provided by the heirs, the responsible authority compiles the public inventory. Once the inventory is made available for inspection, each statutory or appointed heir must decide within one month whether to:

• Accept the inheritance under public inventory,
• Request official liquidation,
• Disclaim the inheritance, or
• Accept the inheritance unconditionally.

By accepting under public inventory, only the debts listed in the inventory transfer to the heirs. However, heirs are personally liable for these debts with both the inherited assets and their personal assets. Heirs remain fully liable for public debts (e.g., tax debts, social security contributions).

c) In the event of bankruptcy liquidation of an estate, the bankruptcy office conducts an inventory of assets and liabilities under the provisions of the Federal Debt Enforcement and Bankruptcy Act (SchKG). After all debts (including bankruptcy costs) are paid from the assets, any surplus is distributed to the statutory heirs. During this process, assets or claims are not necessarily transferred to third parties; disclaiming heirs may submit purchase offers to the bankruptcy office or, under certain conditions, claim benefits from insurance, occupational pensions, or other tied pension plans. Family members who lived with the decedent in the same household may, by law, claim certain essential items. Acquiring estate assets at a favorable price during liquidation may also be a viable option. In this case, only the purchase price, not the asset itself, is used to cover estate liabilities.

Please consult us if you are unsure about how to proceed or need advice on your rights.

Lucerne, September 3, 2021
Reto Marbacher

Inheritance law in Switzerland upholds a principle of equal treatment for all heirs. The concept of equalization is used as a mechanism to achieve this balance during the inheritance distribution. But who is eligible to claim equalization, and who is required to contribute?

What Is Subject to Equalization?

Gifts given by the deceased to an heir during their lifetime are subject to equalization if they were given without charge. If the gift was only partially without charge, only the unpaid portion may be subject to equalization.

Who Is Required to Contribute to Equalization?

Only heirs are required to contribute to equalization. If the recipient of a lifetime gift is not an heir or loses their heir status (e.g., through renunciation of inheritance, inheritance waiver, or disinheritance), they are not obligated to equalize. However, if a lifetime gift violates the reserved portion of another heir, the recipient may be required to return the gift in part under reduction principles.

For the descendants of the deceased, such as children and grandchildren, Swiss law generally requires equalization (Art. 626(2) CC), known as statutory equalization. The law assumes that the deceased intended to treat their descendants equally, so no specific instruction from the deceased is typically required. However, the deceased may expressly release certain descendants from equalization obligations through specific instructions.

For other statutory heirs who are not descendants, equalization applies only to gifts the deceased explicitly intended as advances on their inheritance shares (Art. 626(1) CC, voluntary equalization).

The equalization provisions in Art. 626 CC generally apply only under intestate succession. However, the deceased may extend these rules to appointed heirs through a specific instruction.

Who Is Eligible to Claim Equalization?

Only those who are heirs, or who retain their heir status, may claim equalization. These heirs are known as "equalization creditors."

Equalization Creditors under Voluntary Equalization (Art. 626(1) CC): By law, statutory heirs are mutually required to contribute to equalization, meaning that only statutory heirs can be equalization creditors. An appointed heir is not typically an equalization creditor unless specifically instructed by the deceased.

Equalization Creditors under Statutory Equalization (Art. 626(2) CC): In contrast to Art. 626(1) CC, subsection 2 does not specify which heirs can claim equalization, leading to questions about whether only descendants or other statutory heirs, such as the surviving spouse, can also claim it. The Swiss Federal Supreme Court has recently ruled that "all heirs," including the deceased's spouse, can be equalization creditors. However, prevailing legal theory argues that the spouse should not be a creditor under subsection 2. Since only descendants are required to contribute to equalization, it stands to reason that only they should be creditors under this provision.

Given these ambiguities, it is advisable to clarify the scope of equalization creditors in any equalization instructions.

Form of Equalization Instructions

Equalization rights are discretionary, meaning they can be altered. If the deceased does not provide instructions, statutory provisions apply by default. The deceased may modify these rules unilaterally or by agreement with the recipient of a gift.

According to Swiss Federal Court and prevailing legal theory, equalization instructions are considered testamentary dispositions and must comply with testamentary form requirements. However, the court has ruled that instructions given at the time of the gift are valid even without formalities (BGE 118 II 282, E. 3). Some legal scholars extend this informality to all equalization instructions.

However, to ensure that any deviations from statutory provisions are effective, especially since equalization instructions are typically applied posthumously, it is advisable to document these instructions in writing. This practice helps ensure clarity for the designated beneficiaries or creditors.

Lucerne, August 11, 2021

Simeon Beeler

The will is a highly personal and unilateral disposition. Swiss law does not recognize a joint will and does not permit, for example, that someone else determines whether and by whom the last will should be executed. If one wishes to adapt, change, or revoke their will, this can be done individually, provided the required formalities (public notarization or handwritten) are observed. But how does this work in the case of a marriage or inheritance contract that may have been concluded even with the involvement of descendants?

The marriage contract is an agreement between the spouses. Therefore, any amendment requires the involvement of both spouses. If one spouse loses their legal capacity (e.g., due to an accident resulting in a coma or due to dementia), the marriage contract can no longer be changed or revoked. However, the involvement of the descendants is not necessary, even if a combined marriage and inheritance contract was originally publicly notarized with the descendants. The descendants are only parties to the inheritance contract part.

In the case of an inheritance contract—whether or not involving the descendants—the question of amendability is not always straightforward. It often arises that the surviving spouse wants to redefine who will inherit the estate after the death of the second spouse. Can the wife only consider her relatives in her last will, or conversely, can the husband exclude the godchild of his wife as a beneficiary in his will?

The law, specifically Art. 494 para. 3 of the Swiss Civil Code (ZGB), states succinctly: "Dispositions of death that are incompatible with the obligations arising from the inheritance contract are subject to challenge." All dispositions of the testator that change in any form the contractual dispositions of death (limiting or expanding the circle of beneficiaries, altering inheritance shares, imposing additional conditions, etc.) are considered 'incompatible' with the inheritance contract, unless such a unilateral amendment option has been expressly reserved in the contract. The key question is whether the relevant clause in the inheritance contract was indeed intended to be binding or not, i.e., whether a later will is compatible with the inheritance contract according to the (presumed) intention of the first deceased. If the document is unclear, it shall be interpreted according to principles such as the theory of interests. From this, practice has derived the presumption that the second-deceased spouse is generally bound only concerning the heirs of the first deceased spouse, while still retaining the freedom to dispose of that part intended for their own relatives. If the extent of the binding effect is unclear or if a far-reaching binding effect arises from the contract, the surviving spouse must rely on the beneficiaries of the inheritance contract to agree to the amendment in a (publicly notarized) waiver of inheritance contract. If such a contract does not come into being, the prior inheritance contract does not automatically take precedence over the subsequently contradictory will; rather, the beneficiaries from the inheritance contract can (and must) contest the will within one year of the testator's death. Therefore, the will is not per se invalid or void, but rather contestable.

Our recommendation is therefore: Unwanted restrictions, ambiguities, and assumptions at a later time should be avoided with a clear formulation of the inheritance contract or by clarifying an existing inheritance contract. We support you with our expertise and experience as certified specialists in inheritance law.

Lucerne, July 13, 2021

Reto Marbacher

As of July 1, 2021, employees may be entitled to care leave of up to 14 weeks for their child if the child is severely impaired due to illness or accident. This entitlement is applicable only if there is also a right to care compensation under the Employment Compensation Act (EOG).

The new legal provision in the Swiss Code of Obligations (OR) titled "Leave for the Care of a Severely Disabled Child Due to Illness or Accident" states the following:

1. Eligibility: Employees are entitled to care leave of up to 14 weeks if they have a right to care compensation under Articles 16n–16s EOG because their child is severely impaired due to illness or accident.
2. Duration of Leave: The care leave must be taken within a framework period of 18 months, starting from the day the first daily allowance is received.
3. Parental Leave Split: If both parents are employees, each parent is entitled to care leave of up to seven weeks. They may choose a different distribution of the leave.
4. Leave Taking: The leave can be taken all at once or on a day-by-day basis.
5. Employer Notification: Employers must be informed immediately about the terms of the leave and any changes.

(Article 329i OR)

Additionally, the Employment Compensation Act (EOG) has been supplemented by Articles 16n to 16s, which regulate the entitlement to compensation for parents caring for a severely disabled child due to illness or accident.

Minor Child

A parental relationship must exist. This relationship is established between the mother and child at birth (Art. 252 Abs. 1 ZGB) or through adoption (Art. 252 Abs. 3 ZGB). The relationship between the father and child is established through marriage to the mother or by acknowledgment, or by court decree (Art. 252 Abs. 2 ZGB), or through adoption (Art. 252 Abs. 3 ZGB).

Furthermore, the child must be a minor. If the child reaches adulthood, there may still be a right to paid leave under Article 329h OR. Please refer to the corresponding blog post.

Severe Health Impairment

The child must be severely impaired. This is the case when:

• There has been a significant change in the child's physical or mental state;
• The course or outcome of this change is difficult to predict or is expected to lead to lasting or increasing impairment or death;
• There is an increased need for parental care;
• At least one parent must interrupt their employment to care for the child.

(Art. 16o EOG)

These conditions must all be met cumulatively. For example, they may apply in the case of a complicated leg fracture. However, if one parent is not employed and can take care of the child, the last of the four conditions is not fulfilled. In this latter case, there is no entitlement to compensation under the EOG, and thus no entitlement to leave under the OR.

Employment

Employment includes both salaried positions and self-employment. This applies also to spouses working in each other’s business and receiving a salary.

Necessity of Employment Interruption for Care

As previously mentioned, there must be a necessity to interrupt employment. The entitlement to compensation and thus to leave exists only when the interruption is necessary for care. This necessity is largely determined by the situation of the person needing care.

Daily Allowance Entitlement

Finally, the entitlement to leave requires that the parent is eligible for daily allowances under Articles 16n ff. EOG (Art. 329i Abs. 1 OR). This should be covered by the aforementioned conditions.

Scope of Leave

The law states a maximum period of 14 weeks, applicable per child and per health impairment. This is not limited to one per year. Therefore, if another child has a health impairment in the same year, or the same child suffers a new health impairment, a new entitlement to leave (and compensation under the EOG) arises.

Even if both parents meet the criteria for leave, the total leave entitlement is 14 weeks for both parents combined, not an additional 14 weeks for each parent. There will typically be a division of this leave, but it does not have to be equal; parents can choose a different distribution. (Art. 16q Abs. 4 EOG).

The entitlement ends prematurely if the conditions are no longer met, but not if the child reaches adulthood during the framework period (Art. 16p Abs. EOG).

Taking the Leave

The leave does not have to be taken immediately or all at once. Instead, it must be taken within a framework period of 18 months from the first day of the daily allowance. The leave can be split and taken weekly, daily, or even half-days.

Compensation Entitlement

The care compensation is paid as a daily allowance. There is entitlement to a maximum of 98 daily allowances within the framework period. For every five daily allowances, an additional two daily allowances are provided.

If both parents are employed, each parent is entitled to a maximum of half of the daily allowances, but the parents can choose a different allocation.

Amount of Compensation

The daily allowance is 80% of the average income earned before the entitlement to care compensation begins, with a maximum of CHF 196.00 per day (as of July 1, 2021).

Additional Effects of Taking Care Leave on Employment

• No Reduction in Vacation Entitlement: Reducing the vacation entitlement of an employee taking care leave is not permissible (Art. 329b Abs. 3 lit. d OR).
• Prohibition of Dismissal: After the probationary period, employers may not terminate the employment as long as the entitlement to care leave exists, for a maximum of six months from the day the framework period begins (Art. 336c Abs. 1 lit. cter OR).

Luzern, June 28, 2021

Simeon Beeler

What happens to my social media account when I die? Will it be deleted, frozen, managed by a legacy contact or authorized representative, or simply remain "as is"?

In the absence of any specific action, the social media account will remain as it was at the time of death. This means, for instance, that the deceased may continue to appear in friend suggestions for other users, or that another user might receive reminders about the deceased's birthday, work anniversary, or similar events. As a result, individuals who are unaware of the account holder's death may send well-wishes on these occasions, potentially leading to awkward or insensitive situations.

Options Offered by Social Media Platforms

Most platforms allow for accounts to be deleted or deactivated. In each case, it should be carefully examined what "deactivation" entails and how it must or can be carried out.

Of all the platforms we reviewed, Facebook offers the widest range of options. On Facebook, an account can be deleted, memorialized, or managed by a designated legacy contact. The legacy contact may post a final message on behalf of the deceased, update the profile or cover photo, or request account deletion. If permitted, the legacy contact may also download a copy of the content shared on Facebook. However, they cannot log in to the account, read messages, remove friends, or send new friend requests.

Have you thought about what should happen to your social media accounts after your death?

We would be pleased to assist you in making these arrangements.

Lucerne, June 15, 2021

Signed,
Simeon Beeler

As of January 1, 2021, employees are entitled to up to 10 days of paid leave per year to care for a family member and/or life partner with a health impairment.

The new provision in the Swiss Code of Obligations (CO) under the title "Leave for Family Care" is as follows: “The employee is entitled to paid leave for the time necessary to care for a family member, or a life partner, with a health impairment; however, the leave shall not exceed three days per event and a maximum of ten days per year” (Art. 329h CO).

As part of this amendment, the Employment Act (EmpA) has also been adjusted and supplemented accordingly: “3 The employer shall grant the employee leave to care for a family member or life partner with a health impairment upon submission of a medical certificate; the leave is limited to the time necessary for care but shall not exceed three days per event. 4 Except in the case of children, care leave is limited to a maximum of ten days per year” (Art. 36 para. 3 and 4 EmpA).

Definition of Family Members

The term "family members" is defined in accordance with the Swiss Old Age and Survivors' Insurance Act (AHVG). Certain individuals are treated as relatives under the AHVG, meaning the following groups are included (see Art. 329h CO in conjunction with Art. 29septies para. 1 AHVG):

• Relatives in the ascending and descending line (parents, grandparents, children, grandchildren, etc.);
• Siblings;
• Spouse;
• Registered partner;
• Parents-in-law;
• Stepchildren;
• Life partner, provided a joint household has existed for at least 5 years.

Necessity of Care

The entitlement to paid leave only applies if the care is necessary. This necessity depends significantly on the situation of the person in need of care, as well as the availability, feasibility, and reasonableness of care by another person. The law requires a health impairment of sufficient intensity for the family member to depend on care. Additionally, the impairment must be unforeseen, meaning that advance arrangements for care could not have reasonably been made. Furthermore, the employee’s entitlement to paid leave lasts only as long as is required to organize alternative care.

Extent of Paid Leave for Family Care

The law allows for a maximum period of three days per event, intended to give employees time to arrange alternative care. If other care can be organized sooner, the entitlement to paid leave generally ends. In practice, proving this may be difficult.

If multiple care events occur within the year, the total entitlement is limited to a maximum of 10 days. Notably, the Employment Act excludes care for children from this 10-day annual limit. It should also be noted that a further legal provision related to the care of children with severe health impairments will take effect on July 1, 2021. We will keep you informed of any updates.

Salary Entitlement

When eligibility requirements are met, the employee is entitled to regular pay during this leave period, in accordance with Art. 324a CO.

Medical Certificate

The Employment Act (but not the CO) specifies that the employer must grant leave upon presentation of a medical certificate. This certificate must confirm the family member’s need for care, not the employee’s inability to work, as is often mistakenly assumed. Typically, the employee is not unfit for work due to the need to provide care.

Although the statutory text might suggest otherwise, the medical certificate does not need to be available at the moment the employee intends to take the care leave.

Since the requirement for a medical certificate is mentioned in the EmpA but not in the CO, this may lead to a situation where only employees subject to the Employment Act are obligated to provide such documentation. Court practice will need to clarify this.

Lucerne, May 3, 2021

Signed,
Simeon Beeler

Prior to the COVID-19 pandemic, there was a rising trend among employees to plan for extended travel, sabbaticals, further education, studies abroad, and similar endeavors. Many employers recognize the value of such undertakings for their employees within their organizations, allowing for the realization of these plans without necessarily terminating the employment relationship. However, interruptions to work activities carry inherent risks.

Unpaid leave is typically agreed upon at the employee's request. The motivations for such leave are diverse, with the most common being extended travel, further education or studies abroad, and sabbaticals. If an employer wishes to suspend an employee's work obligations, this usually occurs through a leave of absence, while the obligation to pay wages continues, unless otherwise agreed. This arrangement corresponds to unpaid leave. The COVID-19 pandemic has significantly accelerated the digitization within many companies. With the ability to work externally, engage in video conferences, and so forth, unpaid leave may often be replaced by a reduction in workload, as employees can perform their duties from virtually any location around the globe.

Regulations Regarding Unpaid Leave

There is no general statutory provision governing unpaid leave. However, specific provisions regarding certain types of unpaid leave can be derived from the law. According to Article 329, paragraph 3 of the Swiss Code of Obligations (OR), employees are entitled to customary free hours and days, as well as "the time necessary to seek another position after notice of termination has been given." Thus, only a limited number of free hours or days, which are considered customary, are permitted. In practice, this regulation is often applied to medical appointments, bereavements, residential moves, etc. It does not cover longer absences required for extended travel, further education, or studies. Article 329e OR regulates unpaid leave for extracurricular youth work, Article 329f OR in conjunction with Article 35a of the Labor Act (ArG) addresses maternity leave, and Article 329g OR governs paternity leave. Further details on these are provided below.

The law does not specify a particular regulation regarding the unpaid leave addressed here. However, it is conceivable that the terms of unpaid leave could be established within a collective labor agreement (GAV) or in the individual employment contract, as well as in related regulations. If no provisions are set forth in the applicable GAV or individual employment contract, a separate agreement on unpaid leave must be established between the employer and employee for each individual case. This can occur in writing, verbally, or implicitly. Employees are advised to insist on an explicit written agreement.

Excursus: Leave for Extracurricular Youth Work and Maternity/Paternity Leave

According to Article 329e OR, employees are entitled to unpaid leave for unpaid leadership, caregiving, or advisory roles in extracurricular youth work within a cultural or social organization, as well as for the necessary training and education. This entitlement is limited to one working week per service year. Therefore, extracurricular youth work only qualifies for unpaid leave if it is provided without compensation. Generally, there is no entitlement to wages during the leave unless otherwise agreed upon between the contracting parties, stipulated in a normal employment contract, or set forth in a GAV for the benefit of the employee.

Article 329f OR provides that female employees are entitled to a minimum of 14 weeks of maternity leave. Article 35a, paragraph 3 of the ArG stipulates that mothers cannot be employed during the first eight weeks post-delivery and can only be employed after that for up to 16 weeks with their consent. Thus, there is a work prohibition for the first eight weeks. During the subsequent eight weeks, the mother must consent to her employment. The ArG does not impose an obligation on employers to pay wages during maternity leave. However, a limited compensation entitlement is provided through the income compensation scheme. Consequently, mothers receive maternity compensation from the day of childbirth (potentially upon the mother's application in cases of prolonged hospitalization of the newborn, starting from when the child comes home) for 98 days at a rate of 80% of the average earned income (Articles 16b ff. EOG).

Paternity leave under Article 329g OR can be taken flexibly within six months after the child's birth. The entitlement to paternity compensation is regulated in the EOG and EOV.

Consequences of Unpaid Leave Overview

During unpaid leave, the employment relationship remains in effect. Taking unpaid leave results in the suspension of the main obligations of the employment relationship, namely the employee’s obligation to work and the employer’s obligation to pay wages. Certain ancillary obligations from the employment relationship (e.g., the employer's right to issue instructions and the duty of care, as well as the employee's duty of loyalty) continue to exist, albeit in a limited form. Unpaid leave is factored into claims where the duration of the employment relationship is relevant (e.g., notice periods, wage continuation during incapacity to work). There are particular considerations regarding social insurance, which will be elaborated upon below.

Practical Tips

Establish concrete agreements to prevent legal uncertainties:

• Duration and timing of unpaid leave
• Suspension of work obligations, part-time work assignments, and any limited availability
• Suspension of wage payment obligations or the amount of any limited wage continuation and compensation for any limited availability
• Effects on the right to terminate employment
• Effects on vacation entitlements
• Any continuation of social security contributions

Particulars of the Right to Terminate Employment

In general, the right to terminate employment is not restricted by unpaid leave, just as it is not restricted by vacation. However, it is conceivable that through unpaid leave, an (implicit or tacit) agreement has been reached indicating a suspension of notice periods. This means that, in such cases, the notice period begins only after the unpaid leave concludes. To avoid potential uncertainties, a clear regulation is advisable. Furthermore, an employer's ability to terminate employment due to the employee's lack of availability may be limited. Since a termination only takes effect upon receipt by the addressee, it must be actually deliverable. Regarding delivery during vacation, the Federal Court and prevailing legal doctrine maintain that a termination is considered delivered only when it can be reasonably expected that the recipient will acknowledge it upon their return. Conversely, if the employee has remained at home and arranged for mail forwarding, or if they have traveled without the employer's knowledge, a different standard may apply. This reasoning is, in my opinion, analogous to a trip taken during unpaid leave. It should be noted that termination via email, SMS, other messaging services, or similar is also permissible, provided that no written form is stipulated.

Vacation Entitlement

Employees are entitled to a minimum of four weeks of vacation per service year, with corresponding adjustments for incomplete service years based on the duration of the employment relationship in the relevant year (see Article 329a OR). This entitlement increases with the duration of the service year. The prevailing legal opinion holds that during unpaid leave, the principle "no work, no vacation" applies, meaning that vacation entitlement does not accrue during unpaid leave.

Mention in Employment References

Whether unpaid leave should be mentioned in employment references is assessed according to standard principles. It is understood that extended absences that are significant relative to the overall duration of the contract should be documented. An absence due to unpaid leave may only be mentioned against the employee's will if failing to do so would present a misleading picture, for example, by leading to incorrect conclusions regarding the acquired work experience. Thus, this is contingent upon the employee’s consent, the duration of the unpaid leave, and the length of the employment relationship.

Wage Continuation During Incapacity to Work

Due to the absence of a wage claim, the entitlement to wage continuation according to Article 324a is suspended during unpaid leave. Should incapacity for work persist beyond the agreed duration of unpaid leave, the entitlement to wage continuation revives.

Accident Insurance

Coverage under mandatory occupational accident insurance ceases 31 days after the day on which entitlement to at least half of the wage ceases (see Article 3, paragraph 2 of the Accident Insurance Act - UVG). However, there is an option to enter into a supplementary insurance agreement with the employer's accident insurer, which can extend coverage for up to six months (see Article 3, paragraph 3 UVG). For coverage beyond this period, the employee may take out a voluntary individual accident insurance policy. Certain insurers (particularly SUVA) are accommodating and will pay daily benefits during unpaid leave if the accident disrupts the purpose of the leave. The daily benefit is based on the last wage received prior to the accident (see Article 22, paragraph 3 of the UVV). For irregular employment, a reasonable average wage is considered (see Article 23, paragraph 3 of the UVV). For necessary medical treatment abroad, the insured is reimbursed up to a maximum of double the costs that would have been incurred for treatment in Switzerland (Article 17 UVV).

(Collective) Daily Sickness Allowance Insurance

As previously noted, the entitlement to wage continuation is suspended during unpaid leave. This also applies to any potential daily sickness allowance. It may therefore be advisable to take out individual sickness allowance insurance for the duration of unpaid leave.

AHV/IV/EO Contributions

Depending on the duration of unpaid leave, there may be a gap in contributions unless the spouse has made contributions of at least double the minimum contribution (Article 3, paragraph 3 of the AHVG). A contribution gap can also be avoided by paying the minimum contribution for non-working individuals (CHF 413.00/year, as of 2021) (Article 10, paragraph 1 of the AHVG), which is highly recommended.

Unemployment Insurance (ALV)

If unpaid leave lasts longer than 12 months, the contribution period is no longer preserved within the two-year reference period

Our mother passed away 16 years ago, and we, the "children," have never discussed the inheritance with our father. Are we still a community of heirs? What rights do we have concerning the properties of our father and our deceased mother? Can I cash out my share?

When multiple individuals are designated as heirs from an estate, a community of persons is automatically established by law at the time of the testator’s death. This community, referred to as an “heir community,” operates under the principle of unanimity unless otherwise agreed. The heirs can only make decisions regarding the estate’s assets, whether movable property or real estate, with the consent of all members of the heir community. If a property is transferred from the testator to the heir community through inheritance, the mutation in the land register incurs fees. However, as of January 1, 2018, all inheritance-related property transfers in the Canton of Lucerne are exempt from property transfer tax (this includes the transfer of an estate to a sole heir or to an heir community as well as the transfer of property from the heir community to an heir or legatee). This is different when one member of a larger group (e.g., a simple partnership) leaves the group, and their share is allocated to the remaining members: in this case, a property transfer tax of 1.5 percent is levied based on the share of the departing member. In practice, heir communities often remain intact for years without being dissolved. The later exit of an individual from a long-standing heir community can lead to unpleasant tax surprises if tax authorities conclude that the (original) heir community should be regarded as a simple partnership, thus making the exit of a person subject to taxation! How, then, can these two communities of persons be distinguished, and how can tax implications be avoided?

An heir community is dissolved through the division of the estate (by contract or court judgment) or—exceptionally—through transformation into another legal entity (e.g., into a simple partnership). Such a transformation can occur either intentionally or without the knowledge and consent of the heirs! The Federal Supreme Court has set high standards in its jurisprudence, ensuring that heirs do not become simple partners without explicitly deciding to do so. Time, i.e., the duration of the existence of the heir community, is not a criterion for distinction. Thus, according to the Federal Supreme Court, an heir community can continue for several decades without division or transformation. The continued existence of the heir community is, in this sense, the norm, while the simple partnership is the exception. For a transformation to occur, the heir community must pursue an objective that goes beyond mere joint administration of the estate. A borderline case may arise if heirs wish to subject a property in the estate to a larger construction project. Depending on the financing and involvement of third parties outside the heir community, the transformation into a simple partnership is more likely. In such cases, it is advisable to seek a tax assessment from the competent authority (so-called tax ruling) beforehand to avoid surprises upon the later exit of a person from the community.

Furthermore, the question of whether an heir community or a simple partnership exists also has implications for jurisdiction or other procedural aspects. For instance, an heir partition action must necessarily be filed at the court in the last residence of the testator.

If you are seeking assistance with the dissolution of an heir community or planning construction projects as an heir community and wish to assess the legal implications, you have come to the right place! We are happy to assist you!

Lucerne, March 10, 2021

Reto Marbacher

Life circumstances change, interpersonal relationships evolve, and laws are amended. Regularly reconsider whether your estate planning arrangement (will, inheritance agreement) still reflects your last wishes.

The world is changing, your life is changing, and the lives of those around you are changing. What is true today may be entirely different tomorrow, or may no longer be relevant. Your last will is also subject to change. Therefore, it is advisable to review it periodically, approximately every five years.

Reviewing the Estate Planning Arrangement

If your arrangement is simple or you possess a particular expertise in inheritance law, you can easily review your last will yourself. However, once your last will includes more complex provisions, I recommend having it reviewed, possibly with the assistance of a professional. Ideally, consult a specialist lawyer in inheritance law who is also a notary.

In Case of Need for Action

If you identify a need for action, there are particularly the following (non-exhaustive) options available:

• Supplementing the existing last will
• Amending the existing last will
• Revoking the existing last will
• Appointing or dismissing an executor
• Contractual agreements concerning marriage
• Lifetime arrangements (e.g., gifts, property purchases, etc.)
• Lifetime arrangements regarding the obligation of equalization

Again, I especially advise involving a professional in the case of more complex arrangements. However, it may also be beneficial to consult a professional even for arrangements that seem straightforward to you. They may be able to present you with interesting estate law constructs that you are not aware of, whose benefits you may not recognize, or that could better reflect your last wishes. Here, too, I recommend consulting a specialist lawyer in inheritance law who is preferably also a notary.

Looking Beyond the Horizon

When reviewing or establishing a (new) arrangement, strive to think beyond the immediate situation, meaning try to anticipate possible changes. You should also consider statistically less likely scenarios. By planning for various scenarios, your last will becomes less vulnerable to changes in the "environment." Here, a professional with experience and expertise can provide significant assistance.

Do You Wish or Need Support in Reviewing Your Estate Planning Situation?

We are happy to assist you as specialist lawyers in inheritance law and notaries with the necessary expertise and required experience.

Lucerne, March 3, 2021

Simeon Beeler