The revised inheritance law provides greater flexibility for testamentary arrangements. Existing wills and inheritance agreements should also be reviewed and, where necessary, adapted. The new law applies to deaths occurring from 1 January 2023.
The revised law introduced the following important changes from 1 January 2023:
Reduced compulsory portions for descendants and abolition for parents:
Descendants' compulsory portions were reduced from 3/4 to half their statutory entitlement (Art. 471 ZGB; see Art. 457 para. 2 ZGB). Parents' compulsory portions, previously half their statutory entitlement, were abolished. Spouses' compulsory portions remain half their statutory entitlement (Art. 471 ZGB; see Art. 462 ZGB).
A person leaving a spouse and descendants may now dispose freely of half the estate: each group's compulsory portion is one quarter. Previously, only 3/8 was freely disposable, with one quarter reserved for the spouse and 3/8 for descendants.
Parents still have statutory inheritance rights (Art. 458 ZGB). If an unmarried person leaves a cohabiting partner and no descendants, the estate may pass to the parents without contrary testamentary or contractual arrangements. Abolition of parents' compulsory portions nevertheless allows unmarried, childless persons to dispose freely of their estate.
Loss of compulsory portion protection during divorce or registered partnership dissolution proceedings:
Under the revised rules, compulsory portion protection may end during pending divorce proceedings. If a spouse dies during qualifying proceedings, compulsory portions are calculated as if they were unmarried (Art. 472 ZGB). Previously, protection ended only when the divorce judgment became final.
A spouse's statutory inheritance entitlement continues until the divorce judgment becomes final (Art. 462 ZGB; see Art. 120 para. 3 item 2 ZGB). A testamentary disposition is needed to exclude it.
Greater disposable share through usufruct for the surviving spouse:
A married testator may now give the surviving spouse up to half the estate outright and a usufruct over the other half. This applies only against joint descendants, whose shares are burdened by the usufruct (Art. 473 ZGB). Previously, only one quarter could be given outright, with usufruct over three quarters.
A surviving spouse receiving only a usufruct does not have heir status or a compulsory portion entitlement unless also appointed heir to the disposable share; this appointment is therefore usual (Art. 473 para. 2 ZGB). A spouse receiving only a usufruct legacy may reject it and claim the compulsory portion through an action for reduction.
A general restriction on gifts under inheritance agreements:
Under the new law, subsequent testamentary dispositions and lifetime gifts can be challenged after the testator's death if incompatible with obligations under an inheritance agreement and not expressly reserved (Art. 494 para. 3 ZGB). Ordinary occasional gifts are exempt.
Previously, gifts and testamentary dispositions could be challenged only if the agreement prohibited gifts or an intention to harm was proved, a difficult requirement criticised by commentators.
Inheritance agreements should therefore be carefully drafted, expressly reserving any intended future gifts and testamentary dispositions.
Clarification of the order of reduction:
The new law clarifies the reduction order for intestate acquisitions, meaning statutory inheritance where no testamentary disposition exists. Art. 532 ZGB specifies: (1) acquisitions under intestate succession; (2) testamentary benefits; (3) lifetime gifts.
Benefits under a marriage contract are treated as lifetime gifts and may therefore be subject to reduction.
Clarification of pillar 3a beneficiaries' claims:
Benefits from restricted private pension provision (pillar 3a) do not form part of the estate. Beneficiaries have their own claim against the provider after death, governed by pension rather than inheritance law (Art. 82 para. 4 BVG). However, these benefits are included in the compulsory portion calculation and may be reduced (Arts. 476 and 529 ZGB).
Clarification of compulsory portion calculations where more than half the surplus is allocated:
A marriage contract's allocation of more than half the surplus to the surviving spouse is not included when calculating the compulsory portions of that spouse and joint children (Art. 216 para. 2 ZGB). Their portions are calculated from the net estate after the statutory matrimonial property settlement under Art. 215 ZGB.
For children who are not joint children, allocation of more than half the surplus continues to be considered when calculating compulsory portions, based on the net estate resulting from the statutory matrimonial property settlement under Art. 215 ZGB.
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