International inheritance law – avoiding conflicts of jurisdiction

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If a person dies who has links to the legal systems of different states, this can lead to difficulties in determining the administrative or judicial jurisdiction for his or her estate and the law of succession applicable thereto. For example, anyone who lived and worked in Geneva as a French expatriate and left property in both Switzerland and France at the time of his death causes legal problems beyond his death. The same applies for example to the Swiss pensioner who spends a large part of her time with her husband in their holiday home in Mallorca and then dies.

Which country’s courts have jurisdiction for inheritance lawsuits in the event of disputes? Which law of succession regulates the deceased’s estate? Under what conditions can inheritance decisions from other countries be recognised? Such and other issues are regulated in Switzerland by the Swiss Private International Law Act (PILA) – from a Swiss perspective. Other states also regulate these issues in their respective conflict-of-law rules – from their respective perspectives. Therefore, where different states are involved, this can lead to conflicts-of-law if national regulations are not coordinated, which is not uncommon. Thus, several states may consider themselves responsible for the same estate and contradictory decisions may result.

In order to address these synchronisation problems within the legal area of the EU, the EU adopted Regulation No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (EU Succession Regulation, ESR). The ESR applies to all deaths from 17 August 2015 and covers all EU member states except Denmark, Ireland and the United Kingdom. The aim is to harmonise conflicts-of-law rules (jurisdiction, applicable law, recognition and enforcement of judgements, certificates of probate) in the field of inheritance law. Substantive inheritance law is not harmonised by the ESR.

The Federal Council has realised that the entry into force of the ESR provides for the opportunity to create more legal and planning security for citizens in cross-border inheritance cases with regard to Switzerland’s relationship to the large legal area in which the ESR applies. On 14 February 2018, the Federal Council therefore initiated the consultation procedure on a revision of the PILA intended to coordinate Swiss international inheritance law with the ESR.

Coordination of jurisdiction

The main objective of the revision is to prevent contradictory decisions in Switzerland and ESR states. The revision of the PILA is intended to improve the coordination of the involved jurisdictions. To this end, competence and recognition rules should be adapted wherever possible. For example, according to art. 86 (3) revPILA, dual or multiple nationals with their last domicile in Switzerland can by means of a testamentary disposition place a part or all of their estate under the jurisdiction of one of their home states, even if they should be Swiss nationals. This should, among other things, enable such persons to make testamentary dispositions in line with art. 10 (1)(a) ESR. Art. 10 (1)(a) ESR stipulates that the estate of nationals of a member state who last had their habitual residence in a non-member state such as Switzerland shall be subject to the jurisdiction of that member state whenever part of the estate is located on its territory. As a result, this implies that such persons will be free to take precautions against such positive conflict of jurisdiction themselves (or must do so if they wish to avoid such a conflict), which arises from art. 10 (1)(a) ESR on the one hand and the current version of art. 86 (1) PILA (Switzerland’s competence on the basis of a last domicile in Switzerland) on the other.

Adaptation of the applied law of succession

Where the rules of jurisdiction and recognition cannot be harmonised, the Federal Council’s draft at least aims to ensure that both sides will apply the same substantive law of succession. An example of such changes in the draft PILA revision is the new version of art. 90 (2) revPILA. If a person possesses several nationalities, he or she may freely elect one of these as the applicable law to govern his or her succession under the regime of the ESR (art. 22). According to the current Swiss law (art. 90 (2) PILA), this option is only available to foreigners. If, on the other hand, a person has Swiss nationality in addition to his or her foreign nationality, his or her estate is subject to Swiss law and there is no option for choice of law (art. 90 para. 1 PILA). Art. 90 (2) sentence 1 revPILA now permits free choice of his or her national law or of one of several national laws, irrespective of possible Swiss nationality. This subordination to the respective national law does not lapse if the testator is no longer a national of the respective state at the time of his death (art. 90 (3) revPILA) – contrary to the current version of art. 90 (2) PILA.

Implementation of further amendments

The Federal Council wants to take the opportunity to consider other required amendments and clarifications that have come to light since the PILA’s entry into force some 29 years ago with regard to PILA provisions on inheritance law. The efforts in this context are not directly motivated by the ESR. For example, the Federal Council proposes a new version of art. 92 (2) sentence 2 PILA in order to improve the delimitation of legal issues subject to the law applicable to the estate (in accordance with art. 90 f. PILA) and legal issues subject to the law of the state having jurisdiction. In particular, if the law of the state having jurisdiction is Swiss law and the law applicable to the estate is foreign law, there are different opinions under the current PILA regarding legal issues relating to executorship. The exact delimitation is controversial. The proposed new provision should now clarify that only the procedural aspects of estate administration or executorship should be subject to the law of the state having jurisdiction. The rights and obligations of the executor, on the other hand, should be governed by the law applicable to the estate.


The legislative process is in an early stage. In a next step, interested parties will have the possibility to make their suggestions in the consultation procedure (deadline: 31 May 2018). The Federal Council must then submit the bill to the parliamentary legislative procedure, where amendments can be made to the text of the bill. An amendment to the PILA adopted by Parliament is subject to the optional referendum. Experience has shown that the revised law could be effective from 2020/2021 at the earliest.

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