Many parents transfer their assets to the next generation at an early stage – for example, through gifts, advance inheritances, or as part of estate planning. What ist often overlooked is that if their own assets are no longer sufficient later on, children may be required to provide financial support under certain circumstances. The legal basis for this is Art. 328 of the Civil Code.

Article 328(1) of the Swiss Civil Code requires “anyone living in comfortable circumstances” to support their relatives if the latter would otherwise fall into hardship. However, this obligation applies only to lineal ascendants. Cantonal legislation, such as § 37 Social Assistance Act of the Canton of Lucerne, also refers to the provisions of the Civil Code.

What does this obligation to provide support mean?

The obligation to support relatives, which is enshrined in the Civil Code, is based on family law. It is supplementary to social insurance benefits. If these benefits are insufficient, support from relatives may be considered. In practice, however, the local government typically grants social assistance first and then assesses whether it is possible to seek support from relatives who are obligated to provide it.

What are the requirements for the obligation to provide support under Article 328 Civil Code?

A duty to provide support requires that the person in question be in a state of financial distress. This means that, without financial assistance, the person would find themselves in financial distress – that ist, if they cannot cover theri living expenses from their own resources (income and liquid assets). The subsistence minimum under debt enforcement law, whicht the person in question can no longer cover – for examplfe, through the sale of assets or through employment – serves as a benchmark for determining financial need; however, an overall assessment is always conducted. The financial hardship is denied if the person could cover their living expenses but maliciously fails to do so. Another decisice factor in the assessment is whether the person in question has access to sufficient social security benefits.

Secondly, there must be a relative in ascending or descending line of the person in need who is in a favorable financial position. According to Federal Supreme Court case law, this is only the case if a high standard of living is possible and the support can be provided withour significantly impairing the relatice’s own standard of living. It is irrelevant whether the relative feels connected through a family community or does not maintain a family relationship.

It can therefore be concluded that the obligation to provide support is therefore determined by the beneficiary’s need and the obligor’s financial capacity.

How much is the obligation to provide support?

Under Article 329(1) of the Civil Code, spousal support is limited to what is necessary for the maintenance of the recipient, taking into account the circumstances of both parties. In practice, the upper limit is often based on the lebel of social assitance. In the event of a dispute, the specific amount is determined by the court at its discretion.

Asserting the claim

If no voluntary agreement can be reached, the obligation to provide support must be enforced through civil proceedings before the competent court (Art. 329(3) Civil Code). In the meantime, the local governement my provide social assistance and – where permitted by law – seek reimbursement from relatives who are obligated to provide support. However, it is not authorized to impose a binding obligation to provide support. It may, however, attempt to reach a solution with the relatives regarding financial support.

Real-life example: If a parent gives away their home – will the children have to pay for nursing home costs later on?

If a person disposes of assets (e.g., through a gift), this may result in a reduction or loss of supplementary benefits. This is because, in order to be eligible for supplementary benefits, a person must be receiving an AHV or IV pension and must not be able to cover their living expenses with their income and assets. If assets in the calculation, which may negate entitlement to supplementary benefits. The person in need still has the otion of applying for social assistance, provided their assets are less than CHF 4’000.00 (CHF 8’000.00 for married couples). In such cases, the authorities would assess, after benefits have been paid, whether relatives are required to contribute based on their duty of support.

A common scenario involves individuals in nursing homes who require care and have exhsausted their assets. In such situations, the question of seeking recourse from children regularly arises.

Please feel free to contact us with any questions you may have about the obligation to support relatives.