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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?
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.
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.
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.
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