Consequences of the Swiss inheritance law revision

Swiss inheritance law has undergone significant modifications that will be implemented as of January 2023.

One of the key changes concerns the reduction in the descendants’ statutory inheritance entitlement, i.e. the share of inheritance that must necessarily go to the descendants, even against the will of the deceased.

This statutory entitlement constitutes a fraction of the legal share, which applies by default when the deceased has not left a will.

One of the consequences of this legislative change is the increase in the available portion, i.e. the part of the property that does not necessarily go to the heirs and that the testator can therefore freely donate to third parties.

As a result, as of 1 January 2023, the share that must be allocated to the heirs as their statutory inheritance entitlement will be smaller, granting the testator more freedom to dispose of the remaining share.

However, it should be stressed that this legislative change will apply automatically when the death of the testator occurs after 31 December 2022, even if the will was drawn up before 31 December 2022. Consequently, wills drawn up before this date may no longer correspond entirely to what the deceased wanted, which may obviously be particularly unsatisfactory and problematic for the heirs.

Thus, until 31 December 2022, the heirs’ legal shares and statutory inheritance entitlements are divided as follows:

As soon as the modifications come into force, the heirs’ legal shares and statutory inheritance entitlements will be as follows:

In the practice, if the testator leaves descendants only and that the estate has a value of CHF 1,000,000, the situation would be as follows:

• If the testator dies before the 31^st December 2022, the descendants' statutory entitlement is of CHF 750,000.
• However, if the death occurs after the 31^st December 2022, their statutory entitlement amounts to only CHF 500,000.

The disposable part will therefore increase from CHF 250,000 to CHF 500,000 as a consequence of the implementation of the modified law. Assuming that the testator leaves a spouse and descendants and that the estate has a value of CHF 1,000,000, the situation would be as follows:

• If the testator dies before 31 December 2022, the descendants' statutory entitlement is of CHF 375,000 and the spouse's is of CHF 250,000.
• If the death occurs after 31 December 2022, their statutory entitlements are each of CHF 250,000. Consequently, the disposable part increases from CHF 375,000 to CHF 500,000.

These modifications allow the testator to allocate a larger part of their inheritance to the person/entity of their choice who does not hold statutory inheritance entitlement.

However, if a will was drawn up before 31 December 2022 and contains an indication to “reduce the heir’s share to their statutory entitlement”, the effect of this legislative modification is that what the testator had in mind at the time – where the descendant would receive 3/8 of the succession - will no longer be valid in the event of a death after 31 December 2022 – where the descendant will only receive 1/4 of the succession - which may represent a very significant difference for the descendant in question.

If the testator wishes to avoid such a situation, they should draw up a new will or add an additional section specifying their wishes without further delay.

Contact us if you need advise on the above and more generally about inheritance matters.

21/09/22 - Gabriel Raggenbass, partner at OA Legal and Amélia Rauss, Legal Expat