Is there a need for action for existing wills and inheritance contracts when the new inheritance law comes into force?

1. Fundamental objectives of the revision

On 17 June 2010, the motion “For a modern law of succession” was submitted to the Council of States. The motion instructed the Federal Council to make the outdated law on inheritance/mandatory portions more flexible and to adapt it to the greatly changed family and social circumstances. According to the Federal Council, the new inheritance law, which will come into force on 1 January 2023, will have the effect, among other things, that testators will be able to dispose of a larger part of their estate in future. On the one hand, the revised inheritance law is more flexible than the old one, and on the other hand, it offers the testator greater scope for structuring his or her estate. The most important changes are:

1. The children of the deceased are now entitled to only half of the inheritance as a compulsory portion.
2. The compulsory share of the deceased’s parents, on the other hand, no longer applies. 
3. The compulsory share of spouses in divorce proceedings is limited. 
4. The available quota in the case of usufruct of the spouse is increased. 
5. Furthermore, a hardship provision is created for de facto life partners who were not considered by the testator. 

As a result of these fundamental changes, registered partners can now also increasingly benefit from wills and inheritance contracts. The aim of the revision was also to facilitate succession planning in family businesses so that the stability within family businesses is positively influenced.  

Example 1: Testator with daughter, son and cohabiting partner

The testator can now freely dispose of 50% (previously 25%) of his or her assets, because each child now only receives 25% (previously 37.5%) of the inheritance as a compulsory portion. Accordingly, the testator has the following disposal options:

• The daughter becomes the most-favoured and receives up to 75% of the inheritance, the son is placed on the compulsory portion and receives a minimum of 25% of the inheritance, or vice versa;
• The daughter and the son are placed on the compulsory portion and each receive a minimum of 25% of the inheritance, while the partner receives a maximum of 50%.

Example 2: Testator with spouse, daughter and son

The testator can now freely dispose of up to 50% of her assets. The spouse must receive at least 25% of the inheritance. Each of the two children should only receive at least 12.5% of the inheritance. Accordingly, the testator has the following disposal options:

• The spouse receives up to 75% of the inheritance and the daughter and the son are placed on the compulsory portion and thus each receive 12.5% of the inheritance;
• The daughter receives 62.5% of the inheritance. The spouse and the son are placed on the compulsory portion. The spouse therefore receives 25% of the inheritance, whereas the son receives 12.5%;
• The son receives 62.5% of the inheritance. The spouse is placed on the compulsory portion and receives 25% of the inheritance and the daughter is also placed on the compulsory portion and receives 12.5%;
• The spouse is placed on the compulsory portion and receives 25% of the inheritance, the daughter and the son are both placed on the compulsory portion and receive 12.5% each. The stepchild or a third party receives 50% of the inheritance.

2 Adaptation of existing inheritance contracts and wills

It is therefore questionable whether already existing wills or marriage and inheritance contracts have to be adapted to the existing circumstances as a result of the revised inheritance law or whether they can be left as they are.

The decisive factor for existing wills and marriage and inheritance contracts is not when the document in question was drawn up, but rather when the testator dies. If the deceased dies before 1 January 2023 and thus before the revised inheritance law comes into force, the old-law provisions apply to his or her inheritance. If, on the other hand, the deceased dies after the date of entry into force, the new inheritance law applies to the estate. This applies regardless of whether or not a will or contract of inheritance was drawn up before the death. However, it is important that the testator is already aware that the compulsory portions of any children, spouses and parents will change from 1 January 2023 and can therefore be set even lower in a possible will. In order to avoid any lengthy court proceedings, it is recommended to have existing testamentary dispositions reviewed now in the light of the revision of the law of succession.

Our experienced lawyers at Stach Rechtsanwälte AG will be happy to assist you in this regard.