New Inheritance Law in Force From 1 January 2023 – Immediate Actions

Practical consequences

Increased testamentary freedom

Unless proactive steps are taken to the contrary, all testamentary provisions (will or succession agreement) made under the old law^[2] will remain valid as of 1 January 2023 and will be subject to the new law.

The result is, in particular, that the shares allocated in an abstract manner (unquantified) to the heirs in a will or succession agreement drawn up under the old law will no longer be the same from 1 January 2023. Indeed, several mandatory minima imposed by the mechanism of the hereditary protected shares are reduced in favour of an increased testamentary freedom (i.e. the part of the assets of the estate which the testator may freely dispose of).

Example

In the frequent case of a deceased person who leaves descendants and a spouse, the protected share of the descendants will decrease in favour of the testamentary freedom.

As a result, if the deceased had reduced his descendants to their protected share in a will drafted according to the old law, his wish was to leave them a maximum share of 3/8ths of his estate.

However, pursuant to the new law applicable as of 1 January 2023, this same wording will leave them only a share of 2/8ths of his estate and the testator will have complete freedom as to the allocation he wishes to make of his testamentary freedom, increased from 3/8ths to one half (4/8ths).

Married and heirs until divorce?

Today spouses in divorce proceedings benefit of a protected forced heirship right up until the divorce judgement is effective. Starting on 1 January 2023, in the event of death during the divorce proceedings, the surviving spouse will lose his or her status as a forced heir if at the time of death (1) the proceedings were initiated by joint request or (2) the proceedings were initiated by unilateral request and the spouses had agreed to the divorce or had been living separately for at least two years.

However, if no proactive steps are taken by the divorcing spouse to exclude the other spouse from his or her estate, the latter remains a legal heir and will receive his or her share of the estate. Since in practice it is common for testamentary provisions to be rather vague on the qualification of the surviving spouse’s share, if a divorcing testator wishes to ensure that the potential surviving spouse receives nothing, he or she must provide for this in a testamentary provision expressly establishing that the surviving spouse will be excluded from his or her estate in the event of death before the divorce is finally pronounced.

Conclusions and recommendations

The testator must ask himself the question of the concrete impact of forthcoming amendments on his current will or succession agreement, especially those which increase his freedom of disposal and consequently reduce the protected shares.

As we have seen, if the testator wishes to make greater use of his testamentary freedom, for example to increase his testamentary freedom to the disadvantage of the forced heirs and/or to exclude a spouse in the event of a divorce, the testator must draft new inheritance provisions to this effect.

On the contrary, if the testator wishes to increase the minima provided for by the new inheritance law, he should anticipate this and amend his testamentary provisions, as otherwise his descendants could in fact be less protected.

A complete and careful review of the provisions made is therefore essential so that the testator can express his or her wishes as to the desired distribution as of 1 January 2023 and, where appropriate, make any necessary adjustments. Such adjustments can be done at any time, including right away.

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^[1] The law applicable as of 1 January 2023.
^[2] The law applicable until 31 December 2022.