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The revision on inheritance law will come into force on 1 January 2023. The time of death is the decisive factor in determining whether the current or the revised inheritance law applies. If the deceased dies before 1 January 2023, the current law of succession applies. If the time of death is after the turn of the year, i.e. in 2023 or later, the provisions of the revised inheritance law shall apply. The time at which the estate is settled is irrelevant. The new inheritance law entails various changes. The main effect is that the deceased person is more flexible in the arrangement of their estate. The following changes will come into force from 1 January 2023.
The statutory inheritance remains identical even after the revised inheritance law applies. If the testator now wishes to deviate from this and favor other persons or additionally favor the legal heirs, he can put these benefits onto their compulsory shares and manage the quotas that become free according to his will. With the revised inheritance law, the compulsory portions of the descendants as well as of the parents are changed. Up to now, the compulsory share of the descendants was ¾ of the estate according to Art. 471 No. 1 CC. Under the revised inheritance law, this entitlement is reduced to ½ of the estate. Under current law, the parents have a claim to a compulsory portion amounting to ½ of the estate based on Art. 471 No. 2 CC. This entitlement ceases with the inheritance law revision, as a result of which the parents are no longer protected by the compulsory portion.
From 1 January 2023, statutory entitlement will only protect descendants and the surviving spouse. There will be no change to the surviving spouse's compulsory share when the revised inheritance law comes into force. The revised inheritance law enables the testator to manage the estate to a greater extent in accordance with his will.
If the surviving spouse is to be given the most favorable treatment vis-à-vis the co-heirs, the deceased spouse may assign the usufruct of the entire estate and additionally the freely disposable quota to the surviving spouse. Under the law in force today, only ¼ of the estate may be transferred to the surviving spouse for ownership. Newly, this free quota of the usufruct was increased to ½ of the estate. The surviving spouse may also be granted a usufruct over the remaining ½ of the estate. This amendment further extends the benefit to the surviving spouse and can be significantly improved compared to the current law.
Under the current law, the spouse is also entitled to a compulsory portion during the divorce proceedings. This entitlement does not expire until the divorce decree has become final. This means that the spouse is entitled to inherit and is protected by the compulsory portion even if the divorce decree has been pronounced but the appeal period has not yet expired. The revised inheritance law provides for the possibility that during the divorce proceedings (from the initiation of the divorce proceedings) the current spouse is no longer entitled to their compulsory portion. However, this provision does not apply by operation of law. Certain conditions must be met. In addition, this exclusion from the protection of the compulsory portion must be provided for in a testamentary disposition.
There is a notable change from the freedom to donate gifts to the prohibition of gifts. According to current case law, each party can freely dispose of their assets even after the conclusion of an inheritance contract and can therefore also make gifts without further ado. The gifts are only contestable if they are made with an obvious intention to cause harm to other heirs’ sharesge. With the paradigm shift to the principle of gift prohibition, all gifts are now voidable. Occasional gifts are excluded from this rule. In addition, it is possible to deviate from this rule by expressly stipulating otherwise in a testamentary disposition.
Until now, the law did not specify whether the assets of the tied pension plan (Pillar 3A) were part of the estate or whether the beneficiary had a separate claim on the pension fund. This led to discussions in the application of the law. This matter is now stipulated by law. Pillar 3a assets are not included in the estate and the beneficiary can assert the claim directly against the pension fund. The payout of the tied pension plan is nevertheless, relevant for the calculation of the compulsory portions. In this calculation, the claims from pillar 3a are added to the estate.
If you need further information regarding the inheritance law revision or have any questions about it, attorneys in St. Gallen, Zurich and Frauenfeld will be happy to help you.