Today, the Swiss Parliament passed the revision of the Private International Law Act ("PILA"), which has been under discussion for several years.
What it is all about:
The revision aims at modernising the provisions of international succession law and align them, at least partially, with European law (EU Succession Regulation), in particular in order to reduce conflicts of jurisdiction in the future. It also aims at eliminating existing ambiguities.
The revised PILA continues to follow the principle of unity of succession (one court and one governing law for the entire estate) and applies the deceased's last place of residence as the primary connecting criterion.
The most important changes:
1. Restricting Swiss jurisdiction (Art.87 §1, 88 §1 nPILA)
If the deceased's last residence was abroad, the Swiss authorities are only exceptionally competent to deal with their estate (as before). In the case of a Swiss deceased with last residence abroad, it is now clear that the Swiss courts/authorities at their place of origin only have jurisdiction if the authorities in the country of last residence (previously: "the foreign authorities") do not deal with their estate. However, in order to avoid jurisdictional conflicts, Swiss authorities may decline jurisdiction if the authorities of a foreign national State of the deceased, the State of their last residence or, in the case of specific assets, the State of their location deal with the estate. The same applies for jurisdiction over assets located in Switzerland when the foreign decedent had their last residence abroad.
2. No mandatory jurisdiction if Swiss law is chosen (Art.87 §2 nPILA)
So far, Swiss authorities were always competent for handling the entire estate when a Swiss national residing abroad chose Swiss law to govern their estate; thus, this choice automatically led to a Swiss jurisdiction. In future, the testator can make a reservation to exclude Swiss jurisdiction. This reduces the risk of positive conflicts of jurisdiction and can avoid the risk of the potential levying of inheritance tax in Switzerland.
3. Precluding any Swiss jurisdiction (Art.88b §1 nPILA)
A foreign national, who has their last residence in Switzerland and who chooses the law of their foreign national State to govern the estate, can now explicitly declare that State's authorities to be competent, thereby waiving Swiss jurisdiction.
B. Applicable inheritance law
1. Principle (Art.90 nPILA)
As before, the estate of a deceased person, whose last residence was in Switzerland, is governed by Swiss law (subject to a choice of law). If the deceased had their last residence abroad, the estate is governed by the law referred to by the conflict rules of their country of residence. Henceforth, where these rules refer back to Swiss law, the substantive succession law of the country of residence will apply (§2). However, if the Swiss authorities at the place of origin of a Swiss national who died with last residence abroad have jurisdiction, Swiss substantive law continues to apply in the absence of any choice of law (§3).
2. New choice of law options (Art.91 nPILA)
Until now, Swiss citizens were not allowed to choose a foreign law. The initial draft envisaged that Swiss dual nationals would also be able to choose one of their national laws to govern their estate. This proposal gave rise to disagreement between the Chambers due to the risk of circumventing Swiss forced-heirship rights. By way of compromise, the following now applies: Swiss dual nationals can choose one of their national laws, but they may not derogate from the Swiss provisions on the freely-disposable share (§1). Accordingly, Swiss law on forced heirship remains reserved. However, it may still be advisable to choose foreign inheritance law, e.g. in order to make use of foreign planning tools such as trusts, or to ensure consistency between the governing matrimonial and succession laws.
Moreover, Swiss nationals living abroad can continue to make a partial choice of law with regard to their assets located in Switzerland if this choice also involves Swiss court jurisdiction (§3).
Goals (not) achieved?
The PILA revision broadens the scope for cross-border estate planning, which is welcomed. In future, careful planning should make it easier to avoid conflicts of jurisdiction. Combining a choice of law with a choice of jurisdiction should facilitate the application of the law. However, conflicts of jurisdiction cannot be completely ruled out even under the revised PILA.
Despite the possibility of choosing one of their foreign national laws, Swiss dual nationals will still have to respect Swiss forced-heirship rights.
With these new possibilities, international estate planning is likely becoming even more demanding. We will be happy to assist you with this!
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