Changes to inheritance law - what applies to succession from January 1, 2023? - MKY GROUP
The new inheritance law comes into force on January 1, 2023. Just in time, MKY Group AG will briefly address the most important changes to the inheritance law revision as of January 1, 2023.
Reducing compulsory shares and increasing available quotas
The central change in inheritance law is the reduction of the compulsory share of descendants; the testator's parents are no longer protected by the compulsory share. The compulsory share of descendants is reduced from three quarters to half of the legal share of inheritance.
The descendants of the deceased parent are now entitled to a compulsory share of a quarter of the deceased parent's estate if the deceased parent was married or half if the deceased parent was not married. However, the claims of surviving spouses and registered partners to the compulsory share do not change. If there are no descendants, this still amounts to half of the inheritance or a quarter (½ x ½) if he has to share it with descendants. When benefiting the surviving spouse or the surviving registered partner, the available quota is now half of the estate instead of a quarter of the estate.
Due to the increased available quota as a result of the reduction in compulsory shares, the surviving spouse, the registered partner, non-marital partners, isolated descendants, organizations, etc. may receive additional benefits by means of a final decree or inheritance contract. In addition, cantonal inheritance and gift taxes must be observed, which have not been changed under the new inheritance law.
Figure: Inheritance law and compulsory shares from 2023
Donation ban
Creditors of inheritance contracts can challenge new dispositions due to death and benefits among living people — with the exception of usual occasional gifts — if (1) the subsequent donations reduce their benefits under the inheritance contract and (2) a donation during their lifetime was not included in the inheritance contract.
If the testator wishes to be able to continue to freely dispose of all or part of his assets during his lifetime, appropriate reservations are necessary in the inheritance contract.
Inheritance and marital property law consequences of pending divorce proceedings
Under current law, the right to estate and statutory inheritance law does not exist between spouses if they are divorced or when the judgment is final. With the revised inheritance law, the following applies: Divorced spouses still have no inheritance rights among themselves. If a spouse dies during divorce proceedings and (1) these have been initiated on joint request or continued on joint request in accordance with the rules on divorce, or (2) the spouses have lived separately for at least two years, the surviving spouse loses his compulsory share claim under the new law, but not his legal right of inheritance. This means that the surviving spouse remains entitled to his legal share of inheritance before the divorce decree becomes formal, unless it has been withdrawn from him in a will. The same applies in each case to proceedings for the dissolution of a registered partnership.
In the event of pending divorce proceedings in accordance with the previous paragraph, the superstatutory benefits in the case of proposal participation in the ordinary property regime of the income share and in the allocation of total assets if there is a community of property are waived by law.
Clarification on tied self-provision
There is currently legal uncertainty regarding the disbursement of tied pension assets.
There is a risk for insurance companies and banks that, after payment to the beneficiaries without prior consultation with the heirs, they will dispute the payment and have it included in the estate. The newly enshrined provision of the Federal Act on Occupational Retirement, Survivors' and Disability Benefits provides that persons with a recognized form of pension have their own right to the benefits allocated to them. The pension funds (insurance and bank) pay out the funds directly to the beneficiaries.
Although the claims under Pillar 3a do not fall into the estate, they are added to the compulsory share calculation measure and are subject to reduction.
Our advisors will be happy to advise you on the subject of inheritance law.
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Disclaimer: The content of this blog post is for informational purposes only and does not constitute professional advice. Each individual case should be reviewed individually and we recommend that you seek professional advice for specific questions.
