More room for manoeuvre and more responsibility: The Swiss inheritance law revision as of 01.01.2023

Three of the most important topics of the revision of the law of succession are:

•    Modification of the compulsory portions
•    Loss of the compulsory portion during pending divorce proceedings
•    Increase of the available quota in the case of usufruct (most-favoured-nation for the surviving spouse)

The aforementioned changes actually give the testator more room for manoeuvre. However, this also increases the testator's responsibility for the settlement of the estate. This article provides a brief overview of these most important changes and answers to two questions that arise.

Compulsory portions

The statutory heirs include the descendants, the spouse/registered partner and the parents of the deceased. The protection of the deceased's parents from the compulsory portion was abolished with the revision of the inheritance law.

From 01.01.2023, the following statutory heirs are now protected by the compulsory portion:

•    Spouse / registered partner and registered partner2
•    Descendants

The following are not protected by compulsory portions

•    Parents
•    Siblings
•    Grandparents

The amount of the compulsory portions in relation to the statutory inheritance entitlement is as follows from 01.01.2023:

With the reduction of the compulsory portions of the descendants and the abolition of the compulsory portion of the parents, the testator can dispose of his estate to a greater extent and for the free quota either additionally provide the legal heirs (e.g. spouse, descendants, parents) or third parties with a pecuniary benefit.

The free available quota in relation to the estate that the testator can dispose of is as of 01.01.2023:

As a result of the amendment, the deceased has the following new possibilities to dispose of his estate in the various family constellations as of 01.01.2023:

The testator is married and has descendants: The testator can still dispose of his estate only to a limited extent, because the spouse and descendants are protected by the compulsory portion. However, the freely available quota is now 1/2 instead of 3/8 of the estate.

The testator is married, has no descendants, but leaves parents: The deceased can only dispose of his estate to a limited extent, because the spouse is protected by the compulsory portion. The freely disposable quota is now 5/8 instead of 1/2 of the estate, since the compulsory portion of the parents no longer applies.

The testator is not (or no longer) married and has descendants: The testator can only dispose of his estate to a limited extent, because the descendants are protected by the compulsory portion. Since the compulsory portion of the descendants has been reduced, the freely available quota is now 1/2 instead of previously only 1/4 of the estate.

The testator is not (or no longer) married and has no descendants: The testator can now freely dispose of his or her estate in full, as the compulsory share of the parents no longer applies.

The testator is in pending divorce proceedings before the court and has no descendants: The testator can now freely dispose of his estate, as the spouse is no longer protected by the compulsory portion in this constellation (cf. below).

The testator is in pending divorce proceedings before the court and has descendants: The testator can only dispose of his estate to a limited extent, because the descendants are protected by the compulsory portion. However, the spouse is now no longer protected by the compulsory portion and the compulsory portion of the descendants has been reduced, which is why the testator has more room for manoeuvre to dispose of his estate. The freely available quota in this constellation is now 1/2 instead of 3/8 of the estate.

Loss of the compulsory portion during pending divorce proceedings

Previously, spouses were entitled to inherit until the divorce decree became final. This meant that in the event of the death of a spouse during pending divorce proceedings, the surviving spouse remained fully entitled to the inheritance and also protected against the loss of the compulsory portion. This even applied in the event that a spouse died after the opening of the divorce decree but before the expiry of the appeal period. It can be assumed that if spouses are in divorce proceedings, they do not want to benefit the other even after death. The legislator has reacted to this. As of 01.01.2023, the still-spouse's compulsory share will cease to apply if the spouses are in divorce proceedings on joint request or in divorce proceedings after two years of separation at the time of death. The still-spouses therefore have the possibility to exclude the still-spouse from the succession by will during pending divorce proceedings. However, for this to happen, the spouses themselves must take action and make a corresponding provision in a testamentary disposition.

Would you like to know what the changes mean for you? We will be happy to advise you - simply book an appointment with your financial planner.