Facts
The appellant (born 1958) is the extramarital child of the deceased (died 21 July 2017). In 1958, the deceased undertook to pay maintenance to the appellant but did not acknowledge paternity with civil status consequences. The deceased left two other children from a dissolved marriage, B. and C., who partially divided the estate by an inheritance agreement. On 7 March 2019, the appellant filed a reduction claim against B., C., the D. Foundation, the D. AG and the E. AG with the District Court of Baden. Among other things, he sought a declaration of his status as heir under Art. 470 CC. The District Court limited the proceedings to the issue of standing and dismissed the claim on 4 August 2021, ordering the appellant to pay costs. The Higher Court of the Canton of Aargau dismissed the appeal by decision of 20 February 2023. The appellant filed an appeal in civil matters on 23 March 2023 with the Federal Supreme Court, seeking the quashing of the contested decision and a remittal for further consideration. The Federal Supreme Court did not enter into the appeal and dismissed it.
Considerations
The Federal Supreme Court examined whether the appellant, as a forced heir entitled to a compulsory share, had standing to bring a reduction claim under Art. 522 CC. The decisive factor is whether he qualifies as a descendant of the deceased within the meaning of Art. 457 CC, which requires a legal parent-child relationship. However, a pre-existing child support obligation does not create such a legal parent-child relationship and thus does not confer inheritance rights.
The question of who qualifies as a descendant is governed by family law. A legal parent-child relationship arises either by birth (to the mother), by recognition or by judicial establishment of paternity. A paternity action is a constitutive action that creates a legal parent-child relationship only upon judgment. A mere child support obligation or maintenance agreement does not create a legal parent-child relationship and thus no right to inherit.
Article 13a para. 1 Transitional Provisions to the CC provides that extramarital children who had not yet reached the age of ten on the date the new child law entered into force (1 January 1978) could bring a paternity action within two years of the new law’s entry into force. For older children, the possibility of bringing a paternity action remained open in principle, provided that important grounds existed within the meaning of Art. 263 para. 3 CC. The appellant could therefore have brought a paternity action to establish a legal parent-child relationship. His failure to do so is to his detriment.
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