“The law must not deny reality.”
Interview: Urs Hafner
An overhaul of the 100-year-old inheritance law is long overdue, not least because the structure of families has changed. The Swiss Federal Council has presented its draft bill for reform. This has not been thought through sufficiently, according to professor of law Roland Fankhauser. He would like to see the Federal Council display more courage.
UNI NOVA: Professor Fankhauser, the Declaration of Human Rights states that all human beings are born equal. Some of them, however, inherit a fortune while others receive nothing. Is that just?
ROLAND FANKHAUSER: One of the fundamentals of constitutional law is that all human beings are treated equally before the law. The extent to which the distribution of material goods among them is just, ultimately, is a political matter. The fact is that the way inheritance works tends to perpetuate the current distribution of wealth: approximately 10% of heirs inherit 75% of the sum total of all that is inherited. Through the inheritance laws, legislators do, however, ensure that the concentration of wealth does not become feudal in nature; that is to say, they ensure that what is inherited does not become concentrated in the hands of too few.
UNI NOVA: So inheritance law impinges the area of private ownership structures?
FANKHAUSER: Yes, it does. The law, including inheritance law, is intended to create the basis for peaceful relations within society and to prevent disputes about family inheritances. For this reason, lawmakers limit the freedom of the testator, the person who has died, to distribute their wealth entirely as they see fit. There has, however, been little research into whether the law is actually able to achieve this goal of peaceful succession.
UNI NOVA: The traditionally bourgeois dominated state is engaging in a division of wealth?
FANKHAUSER: In a sense, it is. Legislators distinguish between “testate” and “intestate” succession. In the former case, a will exists, in the latter there is none. How often a will is actually drawn up, we do not know. The freedom of the testator is restricted through certain statutory entitlements: the children, a surviving spouse or registered partner, and also parents are all guaranteed a certain share of the inheritance. The deceased is not permitted to leave these parties empty-handed. And the more distant the relationship between the testator and the heir – for example a favorite nephew or an unrelated but admired artist – the higher the rate of inheritance tax. In this way, a proportion of the wealth is returned to the greater society.
UNI NOVA: Why is that the case?
FANKHAUSER: Lawmakers favor and promote the transfer of assets within the family and protect these rights.
UNI NOVA: The existing inheritance laws are being revised for the first time in over 100 years. Given the various new family structures which now exist, this seems long overdue. Following a motion to reform, the Federal Council has now presented a draft bill that aims to take better account of social realities. Partners who were not actually married to the deceased and step-children will no longer go empty-handed. What do you think of this plan?
FANKHAUSER: The draft addresses some sensible technical details and introduces new legal instruments, but overall it has not been thought out sufficiently well and it does not fully consider the possible consequences.
UNI NOVA: During the consultation process, the Swiss People’s Party rejected the proposed revisions because it claimed these would weaken the traditional family. The Social Democratic Party, on the other hand, welcomed it because it took patchwork families into account. Are you socio-politically conservative?
FANKHAUSER: My political standpoint is not relevant here; it’s more a matter of my insights as a legal scholar. The law must be open to social change such as the current pluralization of lifestyles and family structures. It must not deny reality. The standard model of the nuclear family, which some political circles consider to be the ideal – heterosexual parents, married for life and with two children – is becoming increasingly rare in reality. Evidently, more and more people are now living in more complex constellations. The Federal Council’s proposed revisions are, however, a somewhat timid response to these changes. Their proposal is to give the testator more freedom and more leeway, on the one hand, and reduce the statutory share, on the other. When drawing up his will, the testator can then take into account his de facto partner, with whom he cohabits, and her children.
UNI NOVA: And what if the deceased has not written a will? Does the partner inherit nothing?
FANKHAUSER: As I see it, that is exactly where the problem lies. The proposed reform does not go far enough because the unmarried partner is taken into account only in cases where the testator has made dispositions, but not if the unmarried partner has no position as a statutory heir. The revisions stipulate that a partner who inherits nothing can bring a claim against the heirs, but this must happen within three months of the death. I don’t imagine that a lawsuit, while people are still mourning, will contribute to peaceful relations among the bereaved. Forcing those in grieving into the role of a plaintiff seems inappropriate to me. And procedural problems may also arise that have not been clarified even in the slightest.
UNI NOVA: So the revised inheritance law fails in its aim to ensure the peaceful succession of wealth within society?
FANKHAUSER: In terms of the cohabiting partner, that is true. The reform fails to grant such partners a legal right to inherit. I find this astounding given that legislators have been much braver in other areas, for example with regard to joint custody of children and child support. Maybe in the future, they will also make changes to accommodate the now widely accepted same-sex marriage. And as regards the purported increased freedom for the testator being proposed by the Federal Council, I would say that it sounds good. But, after all, who would be against more freedom? The question is whether this freedom will actually be taken advantage of? We don’t know. At the moment, it’s mere speculation because we don’t have the research. And furthermore, greater freedom for the testator increases the danger of the “dictatorship of the cold hand”.
UNI NOVA: The cold hand belonging, I assume, to the deceased?
FANKHAUSER: Yes, indeed. If the testator has more freedom, he is better able to direct the succession of his wealth, which means there will be fewer limits set to arbitrary decisions. He can determine the fate of his wealth well beyond the time of his death; that is what is known as the “dictatorship of the cold hand”. This possibility is also unlikely to contribute positively to achieving the aims of inheritance law to support peaceful relations. The fewer the statutory shares, the greater the risk of unequal treatment and consequently of dispute among the legal heirs.
UNI NOVA: So why has the Federal Council presented such a half-baked proposal?
FANKHAUSER: Codified law is often the result of a compromise between different views and clashing interests. Politics always influences the law no matter whether we legal scholars like it or not. Compromise is not, however, any guarantee of non-contradictory and consistent legislation. Rumor has it that a deal between the left and the right will lead to further reform: In return for improvements to the situation of the cohabiting partner, the inheritance of family businesses will be privileged. The owner of a company will be able to write ownership over to any person he considers suitable. Other heirs who are entitled to a statutory share will, in such cases, have no claim to compensation.
UNI NOVA: That means the person who inherits the company doesn’t have to give up anything?
FANKHAUSER: Not nothing, but maybe even less if, for example, the company is valued lower. But is this special inheritance right justified? We have no empirical data on this. In overall economic terms, is it actually damaging for a firm to pass to a non-family member following the death of its owner? Is the new regulation in the interests of society as a whole? We don’t know. And there is also the question of why property owners, for example, do not receive the same privileged treatment.
UNI NOVA: It seems that legal scholars are often still in the dark …
FANKHAUSER: Assured knowledge of the legal circumstances, as we say, is indeed lacking in many areas. And it is difficult to obtain. Sadly, legal scholars are seldom schooled in empirical legal research. Such research requires considerable time, time which we nowadays seldom have. The same is true of reflection. This would also require much long and careful discussion. Such discussions were once conducted by expert committees. Lawmakers no longer wish to do this; they now conduct only selective bilateral discussions with chosen experts.
UNI NOVA: I suppose, the Federal Office of Justice would argue that the group dynamics among professors complicates matters.
FANKHAUSER: And maybe the Federal Office would be right – and yet it is short-term thinking. Academics look at things from many different angles, and not predictably along political lines. They reflect, and reason, weigh up their arguments against each other. Of course, this is very time consuming but in the end it can produce well-founded solutions. That doesn’t suit politicians, who want to exercise their influence early and see quick results.
UNI NOVA: So reform of the inheritance law is not over.
FANKHAUSER: Consultations in the Federal Council will lead to a number of further revisions but the new law will still not be free of contradictions. And it will continue to give us legal scholars plenty to think about.
Inheritance law reform
Inheritance law deals with delicate issues: death, ownership and family. It regulates the transfer of an estate from a deceased person, the testator, to other individuals, the heirs. Legal scholars have long seen the current inheritance law as rather a “problem child”, as law professor Jean Nicolas Druey put it. The law has existed since 1912, since the introduction of the Swiss Civil Code. Authorized through a motion by the former Zurich state councilor Felix Gutzwiller, the Federal Council is now adapting the law to the realities of a changed society. The draft bill has met with much skepticism in expert legal circles.
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