Who should inherit your assets? Your estate is like a cake whose pieces you can distribute.
Choose appropriate working today to preserve family peace.
Legal succession when you die intestate
Legal succession applies if you remain inactive or die without a will or inheritance contract (so-called testamentary disposition upon death).
Statutory inheritance shares will remain unchanged. The only changes will be to the group of persons entitled to a compulsory portion and the quotas for compulsory portions.
Under the existing law, descendants, parents, spouses and registered partners are considered to be entitled to a compulsory portion.
Revision of inheritance law and forced heirship
The compulsory portion of the parents will be abolished, but not the statutory right of inheritance. Without a testamentary disposition, parents retain their status as legal heirs. From January 1, 2023, descendants and spouses or registered partners will be protected from the compulsory portion. These next of kin are legally entitled to a portion of your estate and cannot, in principle, be deprived of it. What cannot be withdrawn is considered the available quota. You can freely dispose of this calculated share. Who receives which assets in the division of the estate is another matter.
What does this mean for you? You gain more freedom in that you can favor a person of your choice (spouse, cohabiting partner, individual children, stepchildren, friends) or institutions (association, foundation) if you so wish. Up to a certain maximum amount of your assets, you can make bequests, appoint heirs or provide for legal heirs (spouse, children). This is because the reduction of the compulsory portions increases the available quota. The available quota varies depending on whom you leave as heirs entitled to a compulsory portion:
If you leave only descendants, under the revised law you can freely dispose of one-half instead of one quarter. If you leave spouses and descendants, you will be able to freely dispose of one-half instead of three-eighths as of 1.1.2023. If you leave spouses and parents, the available quota under the revised law will be five-eighths instead of one-half. If you only leave parents, you can now freely dispose of your entire estate instead of one-half.
Internal business succession
The reduction of compulsory shares has a positive effect on business succession within the family. Often, the largest share of the assets is in the company. This can, for example, go to only one descendant, with compensation payment by the transferee to the other compulsory heirs.
January 1, 2023
It is not possible to predict when one will die. The amendment to the law will be effective starting January 1, 2023 and will also apply to pre-existing dispositions of property upon death. The new compulsory portions and the extended freedom of disposal are known. This should already be taken into account in the wording today by making dynamic reference to the compulsory portion or by making it clear that the compulsory portion of the law applicable today is intended. In this way, your last will and testament can be observed, understood and a peaceful transfer of assets can be ensured.
You must subject your existing estate plans to a check-up. If someone should only receive the compulsory portion, the crucial question is whether you wanted to give this person as little as possible or whether the compulsory portion or the available quota is an appropriate one under current law. Clarify the situation now and, if necessary, adjust your planning.
Penalty clauses in particular are given enormous leverage.
Setting aside the right to a compulsory portion
You are probably asking yourself in which cases you may disregard the right to a compulsory portion. If the heir protected by the compulsory portion has received his compulsory portion in accordance with Art. 522 (1) of the Swiss Civil Code, there is no violation. You can conclude an inheritance waiver agreement with the heir who is entitled to a compulsory portion, according to which the person waiving the compulsory portion is disregarded as the heir upon inheritance pursuant to Art. 495 (2) of the Swiss Civil Code. In rare cases, the testator may deprive the beneficiary of the compulsory portion (so-called punitive or preventative inheritance).
More option and responsibility in estate planning
Under the revised law, on the one hand, you will have more freedom at the level of civil law. On the other hand, the potential for conflict will also increase, because the unequal treatment of family members is sensitive. It is equally questionable if you have already made unilateral favors during your lifetime, such as a gift subject to usufruct (so-called mixed gift) or have concluded advantageous contracts with only one of several descendants. Disputes are inevitable in the case of unilateral preferential treatment.