Switzerland: The Swiss-American Succession

Last Updated: 27 March 2016
Article by Tina Wüstemann and Daniel Bader

Most Read Contributor in Switzerland, July 2019

I Introduction

The US is currently the second most important trade partner of Switzerland and the most important investment location for Swiss companies. Moreover, offices of American companies located in Switzerland contribute considerably to Swiss prosperity1. This is one of the reasons why, according to the statistics on foreigners of the Federal Office of Migration, 17,648 US citizens (other than dual citizens) were permanent residents of Switzerland as of November 20152. It is estimated that around 100,000 Swiss-American dual citizens live in Switzerland. At the same time, most Swiss citizens who live outside of Europe reside in the US. The number of Swiss citizens living in the US amounted to 78,696 as of the end of 20143.

In the context of Swiss-American succession, US tax and succession law must be considered in addition to Swiss law. This arises, for example, when counseling American citizens with residence in Switzerland or Swiss citizens who own US real estate or US securities. There is a considerable potential for conflict when it comes to succession planning because the Swiss and US succession and tax laws are organized differently and are not compatible in all aspects. In international succession matters between the US and Switzerland it is also important to consider the Swiss-American treaty of friendship, commerce and extradition of 25 November 1850 (subsequently "Treaty")4. Articles V and VI of the Treaty which address conflict of law issues are particularly significant.

Before dealing in detail with the handling of Swiss-American estates, the principles of US matrimonial property and succession law must be examined in order to understand the problems arising in connection with such estates. Specific references to US law refer to the state of New York.

II Principles of US Matrimonial Property and Succession Law

1 General

There is no uniform US matrimonial property and succession law. Each of the 50 federal states has its own conflict of law rules and substantive matrimonial property and succession law. Attempts to comprehensively harmonize the private law of the federal states by way of Model Laws such as the Restatements5 and the Uniform Probate Code, which were recommended to the individual states for adoption and for the transformation of their legislation, have remained widely unsuccessful. The Restatements have influenced the succession laws of certain states and some states have at least adopted parts of the Uniform Probate Code6.

US succession law – which derives from British succession law (common law) – differs fundamentally from continental European law which is based on the Roman judicial system7. Each state distinguishes between succession (substantive succession law) and administration (formal handling of an estate). Thereby, the administrator collects the estate, pays the debt of the decedent and distributes the balance of the assets to the heirs. If a will exists, the probate court examines the formal validity of such will in a probate proceeding before it takes effect8. While administration is handled similarly in most states, substantive succession law is organized very differently across the states9. In New York, the substantive succession law is found in the Estates, Powers and Trusts Law (E.P.T.L.) and the provisions on the formal handling of the succession (probate and administration) are contained in the Surrogate's Court Procedure Act (SCPA). Conflict of law provisions can be found in both acts.

The continental European succession law follows the principle of universal succession, according to which the estate passes immediately to the heirs. US law, by contrast, follows the principle of special succession. The estate is divided into immovable property and movable property, the latter being transferred to an administrator, the personal representative, who is under judicial supervision and responsible for payment of the decedent's debt and distribution of the estate assets10. The immovable property of the decedent, however, descends directly to the heirs, but may be under the care of the administrator under certain circumstances11.

In contrast to Switzerland, which follows the principle of unity of the estate, US law provides different legal frameworks for movable and immovable property. The succession rules are determined according to lex rei sitae for immovable property, while movable property is subject to the law of the last domicile of the decedent, which leads to a scission of the estate12.

2 Marital Property Law in the US

In the US, there are two types of matrimonial property regimes: (i) common law and (ii) community property. Nine states13 have adopted a community property regime which originates from the Spanish-French influence in the colonial period. There are many similarities across the nine states and their provisions resemble those of the Swiss community property regime14.

The remaining states are common law states. As the surviving spouse would not otherwise have any automatic claim to the decedent's property in case of death, the older laws of the common law states provided certain rights to use immovable assets for the protection of the surviving spouse (e.g., dower and curtesy) 15. Today most common law states, including New York, provide for a statutory forced share for the surviving spouse which is called the "elective share"16 (see chapter II.3.2 below). In New York, the common law property regime is only applicable in the case of death and not in case of divorce17. Other states also make the distinction between death and divorce when it comes to the division of matrimonial property, therefore the local legislation should be considered.

If spouses change their residence from a common law state to a community property state or vice versa, the applicable law for real property remains the law of the location of the property (lex rei sitae)18. If the spouses own real property in a community property state, this property is subject to the community property regime even if the rest of the property is subject to the property regime of the new domicile19.

Personal property acquired prior to the change of domicile remains subject to the property regime of the former domicile. If the spouses moved from a community property state to a common law state, each spouse is entitled to half of the assets that were part of the community property until the change of domicile. The assets acquired after the change of domicile are subject to the common law property regime. In the reverse case, each spouse is entitled to his/her own property which he/she owned prior to the change of residence and property acquired after the change of domicile will be community property20. These rules are also generally decisive for spouses who move to the US from a foreign state, for example Switzerland, and vice versa21.

Generally, community property states as well as common law states allow spouses to determine the ownership of their separate and matrimonial property in a marriage contract entered into either before or after the marriage22. If and under what conditions foreign marriage contracts are recognized in the US is subject to the legislation of the respective US state. In the state of New York, foreign marriage contracts are generally recognized23, whereby the independent representation of spouses and the disclosure of the financial situations is not mandatory but recommended when the contract is concluded.

To continue reading this article please click here.


1 Economiesuisse, treaty with the US important for economy, press release of 26 April 2010.

2 Number of permanent foreign citizens, end of November 2015, Federal Office of Migration.

3 58,201 of which were dual citizens. 2014 statistic of Swiss living abroad, Federal Department of Foreign Affairs, Bern.

4 SR, entered into force on 8 November 1855 (The French and English text of the treaty is relevant).

5 The relevant Restatements are the Restatement (Second) of Conflict of Laws and Restatement (Third) of Property: Wills and Other Donative Transfers.

6 Uniform Law Commission: http://uniformlaws.org/LegislativeFactSheet.aspx?title=Probate Code, last visited 5 January 2016.

7 The judicial system of the state of Louisiana, however, is based on Napoleon's code civil due to the influence in colonial days.

8 MARKUS FREY, US-Amerikanische Grundstücke in einem schweizerischen Nachlass, Diss. Zurich 1986, 68f.

9 G.WARREN WHITAKER in: International Succession, 3rd edition, Oxford University Press, UK 2010, N 50.01.

10 HANS RAINER KÜNZLE, Der Willensvollstrecker im schweizerischen und US-amerikanischen Recht, Zurich 2000, 49.

11 MURAD FERID/KARL FIRSCHING, Internationales Erbrecht, Vol. 8, Schweiz, N 69; Frey, (Fn. 8),79.

12 FREY, (Fn. 8), 48, 51 et seq.; FERID/FIRSCHING, (Fn. 11), N 38, N 40.

13 The community property-states are: Arizona, California, New Mexico, Idaho, Louisiana, Nevada, Wisconsin, Texas and Washington.

14 Cf. EUGENE SCLOES/PETER HAY, Conflict of Laws, 2nd edition, St. Paul Minn., 1992, § 14.3; FERID/FIRSCHING, (Fn. 11), N 90

15 SCOLES/HAY, (Fn. 14), § 14.2.

16 EPTL §5-1.1.

17 SCOLES/HAY, (Fn. 14), § 14.4.

18 SCOLES/HAY, (Fn. 14), §14.6.

19 SABINE PEGORARO-MEIER, Die Abwicklung des Nachlasses im Verhältnis Schweiz-USA, Diss. Basel, 1992, 6.

20 SCOLES/HAY, (Fn. 14), § 14.4 et seq., § 14.9.

21 PEGORARO-MEIER, (Fn. 19), 7.

22 SCOLES/HAY, (Fn. 14), § 14.15.

23 Cf. JOHN TEITLER/NICHOLAS LOBENTHAL/PAUL GETZELS in: Family Law, Jurisdictional Comparisons, 1.edition, London 2011, 450.

This article is based on the speech of Tina Wüstemann regarding the Swiss-American Succession of 30 August 2012 at the 7. Schweizerischen Erbrechtstag in Lucerne.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions