Will I inherit from my father as a child of unmarried parents?
The Swiss Civil Code states that the nearest heirs of a deceased person are their descendants. However, since not all of a man's children are also his descendants in the legal sense, it is possible that not all children will inherit from their fathers.
If the father of a child whose parents were not married to each other and who was born before 1 January 1978 dies, it is possible that this child will not inherit from their father. This is possible even if the father is known and even if he paid maintenance for the child for a long time.
The equal treatment of children born in and out of wedlock, aimed for by several legislative revisions, has not yet been (comprehensively) achieved. A remaining inequality is that a child born out of wedlock only inherits from their father if a legal parent-child relationship exists between the child and the father. Children born in wedlock are entitled to inherit by law.
The legal parent-child relationship is the basis for a child being a descendant of a deceased person and thus being considered the deceased’s next of kin. A legal parent-child relationship with the father is established if the mother is married to him at the time of birth. In the case of unmarried parents, the legal parent-child relationship is established by the father recognising the child or by a court judgment obtained by means of a paternity suit. A parent-child relationship is also established by adoption.
Until the amendment of child law on 1 January 1978, the Swiss Civil Code recognised two forms of child recognition. Recognition of the child with civil status effect established a legal parent-child relationship which was entered in the civil status register. In the case of recognition of the child without civil status effect, the father was obliged to pay maintenance (also known as alimony) without a legal parent-child relationship being established. Recognition of the child without civil status effect was also known as “paying paternity” (Zahlvaterschaft).
The new statutory provisions from 1 January 1978 only enabled some of those affected to file an action to establish a legal parent-child relationship within certain deadlines. Those children of “paying fathers” who did not file an action within the statutory deadline following the revision of the law, whose action was unsuccessful or who were not entitled to file an action at all, will not belong to the statutory heirs upon the death of their father and will not possess a right to a compulsory portion.
If a “paying father” passes away without leaving a testamentary disposition or if he does not name his child born out of wedlock as an heir in his will, this child is not entitled to inherit.
If, for example, the “paying father” names all his children in his will and lists both his children born in and out of wedlock with their full personal details, the child born out of wedlock could be qualified as an appointed heir. As an appointed heir, the child has the status of an heir and all the associated rights of an heir. However, the child does not have protection regarding the compulsory portion. Furthermore, in most cantons, the child will have to pay tax on their inheritance because, lacking a legal parent-child relationship, the child is not considered a descendant, who generally inherits tax-free.
If the “paying father” formulates an express and unambiguous recognition of the child in his testamentary disposition, a legal parent-child relationship is established retroactively to the birth of the child upon his death. As an heir, the child enjoys the same rights as any (half-)siblings and is considered a descendant of the deceased. In most cantons, the child pays no inheritance tax.
In the case of testamentary recognition, the formal requirements for testamentary dispositions must be observed so that the recognition is valid. Furthermore, the testamentary recognition of the child should be formulated expressly and unambiguously.
Recognition during lifetime or by will presupposes that the “paying father” wishes to establish a legal parent-child relationship with his child of his own accord. The child concerned relies on their father declaring the recognition to the civil registrar or decreeing it by will. The wording of the testamentary recognition should be chosen carefully, which is why legal advice is recommended.
Against the will of the “paying father”, the child can file a paternity suit. Depending on the individual case, filing an action can be associated with procedural hurdles. The procedural risks and chances should be examined precisely with regard to the specific individual case before initiating proceedings.
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