Succession planning
New inheritance law: the changes at a glance
Inheritance law has changed. We show you which regulations are new, why a reduced compulsory portion increases your scope and how you can best adapt your estate planning accordingly.
Content:
Content:
- Check your will with a view to the new inheritance law, as you can now decide more freely on beneficiaries.
- Lower compulsory portions create greater scope for inheritance.
- There are no longer compulsory portions for parents, so that the spouse can be given preference.
- Cohabiting couples must continue to benefit each other by means of an inheritance contract or a will.
- To the conclusion
In 2020, Parliament decided to revise the inheritance law, which is over 100 years old. It came into force on 1 January 2023. As a result, the legal situation of estate donors and heirs has changed in important respects.
Reduced compulsory portion for descendants
The most important change relates to reduced compulsory portions: You can now freely dispose of a larger part of your estate. Anyone writing a will or concluding an inheritance contract must now take the following compulsory portions into account:
- Following the revision of inheritance law, the children or, in the event of predecease, their descendants are now entitled to half of their statutory inheritance share.Previously, their compulsory portion amounted to three fourths
- The compulsory portion of the spouse or registered partner remains unchanged and continues to amount to half of the statutory inheritance share.
- The parents’ compulsory portion has been abolished with the revision. It previously amounted to half of each parent’s statutory inheritance share.
In this example, the change means that half of the entire estate can be freely distributed in the will. This is the so-called free quota. Previously, only three eighths were available for this.
No compulsory portion for parents
If you have no descendants, your parents are entitled to inherit by law. The parents are no longer entitled to a compulsory portion. It has been completely eliminated. This allows you – if you wish – to appoint your spouse, your registered partner or your civil partner as your sole heir without taking your parents into account.
Change for married couples in divorce
Another innovation concerns married couples who are divorcing. Prior to the revision, the claim to the inheritance and compulsory portion did not expire until the divorce decree became final. In the event of death before a legally valid divorce, the surviving spouse was entitled to at least the compulsory portion.
Today, the protection of the compulsory portion is already lifted when divorce proceedings are initiated. A simple will is sufficient to completely exclude the divorcing spouse from the inheritance.
Effects of usufruct
With a will or an inheritance contract, you can stipulate that your spouse or registered partner can use the entire estate (“usufruct”). Joint descendants can therefore only make use of their inherited assets when the second parent dies. In the case of nonconsensual descendants, however, their compulsory portions must be taken into account.
The reduction of the compulsory portion for descendants now has the following consequences: You may now award your surviving spouse half and not just a quarter of the estate for full ownership. Accordingly, you dedicate one half of the estate to her or him as property and the other half as usufruct.
Prohibition of gifts in inheritance contracts
Beyond occasional gifts, once an inheritance contract has been concluded there is a prohibition on gifts. This also applies to inheritance contracts that have already been concluded. However, if gifts are made without being expressly provided for in the inheritance contract, they can be contested. Previously, freedom of donation applied.
Pillar 3a is not part of the estate
Pillar 3a savings do not belong to the heirs in the event of death but to the beneficiaries. It was already legally undisputed that pension assets held with a pillar 3a insurance institution were not included in the estate. It is now explicitly stated that pension assets in bank foundations are not included in the estate. The revision of inheritance law led to this clarification.
Nevertheless, pillar 3a claims to the extent of the surrender value of the insurance and the capital paid out (bank solution) are added to the compulsory portion calculation. Beneficiaries from surrenderable pillar 3b insurance policies are also treated in the same way. It is best to refer in your will to the beneficiary arrangements that you have deposited with the pension fund.
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Property settlement
In the event of death, the first step is a property settlement between the spouses. Unless otherwise agreed in a marriage contract, the statutory rules on the division of participation in acquired property. Accordingly, the widow or widower is entitled to their respective personal assets as well as half of the acquired property. The other half and the deceased’s personal property form the estate, which is distributed among the beneficiaries.
The spouses can deviate from this rule by means of a marriage contract and stipulate that they allocate the entire acquirement to each other in the event of death. The revision of the law has now clarified that the portion allocated in excess of half is not used to calculate the compulsory portion in the case of joint descendants. They then only receive their share of the inheritance from the deceased parent’s estate.
The new inheritance law has left some of the previous rules untouched. For example, statutory succession, which is applied without a will or inheritance contract, continues to apply.
The revision also does not invalidate wills and inheritance contracts that existed before 1 January 2023. They remain valid. Yet the new rules also apply to them in the event of death after 1 January 2023, for example with regard to compulsory portions. Compulsory portions under the old law must be set out in the will or inheritance contract.
Without a will, statutory succession continues to apply
If you have not drawn up a will or an inheritance contract, your estate will be distributed unchanged in accordance with the statutory order of succession. The compulsory portions have changed, but not who is entitled to inherit and how large the statutory inheritance quotas are.
- If you are married and have children, the first step after your death is to divide the property between the spouses.
- One half of the estate goes to the surviving part of the couple.
- The other half is given to the children.
Still no statutory right of inheritance in the case of cohabitation
The revision of inheritance law has not changed the position of cohabiting partners either. They still have no statutory inheritance rights. If you wish to benefit your cohabiting partner, you must continue to make testamentary or contractual arrangements.
The tax situation has not changed either: Depending on the canton, inheritance to a cohabiting partner is tax-free or continues to be subject to inheritance tax of up to 50 percent.
The new inheritance law expands your scope. It facilitates the favoring of desired persons, for example in cohabitation, or of organizations such as foundations and associations over compulsory heirs. You should take the changes as an opportunity to review your will – if you already have one: Do you want to change the redistributions because of the greater freedom? Are your dispositions regarding the compulsory portions also clearly formulated under the new inheritance law? Or do you need supplements for any divorce proceedings?
Disclaimer
Disclaimer
