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The Swiss parliamentary chambers approved the new inheritance law on 18 December 2020. No referendum has been requested for the proposed amendment[1] within the referendum deadline, which expired on 12 April 2021, the Federal Council has accordingly decided at its meeting on 19 May 2021 that it would enter into force on 1 January 2023.
Background
As a reminder, the revision of Swiss inheritance law has kept the Federal Chambers busy for several years. The “Gutzwiller” motion to modernise inheritance law was submitted to Parliament on 17 June 2010. On this basis, the Federal Council was asked to review and relax inheritance law, in particular the provisions on protected shares (the so called “forced heirship rights”), to bring it into line with current requirements and social developments, bearing in mind some of the provisions of the Swiss inheritance law date back more than a century!
Following the usual stages for the adoption of a new law (consultation procedure with the cantons and political parties, explanatory report, preliminary draft, message and bill of the Federal Council, parliamentary deliberations, etc.), the final text proposed by the Federal Assembly was finally adopted and its entry into force scheduled by the Federal Council on 1 January 2023.
Main changes
Protected shares
The central idea of the new inheritance law is to increase the testator’s testamentary freedom by reducing the protected shares (minimum shares guaranteed on the estate). The protected share of descendants are reduced from ¾ of their inheritance rights to ½ of their inheritance rights. The parents’ protected share (currently ½ of their inheritance rights) is completely abolished. However, the protected share for the surviving spouse or registered partner is maintained at ½ of their inheritance rights.
In short, the protected share is now of ½ of the estate attributed by law to the descendants and the surviving spouse or registered partner. This will enable everyone to dispose of their assets more freely and to a greater extent, by favouring further the persons of their choice.
Synoptic table of the protected shares and the testamentary freedom for the most frequent cases:
The examples found in the table above systematically show an increase in the testamentary freedom between the current law and the law that will be in force as of 1 January 2023 (with the exception of the case where the deceased leaves only a spouse or a registered partner).
Loss of the protected share during divorce or dissolution proceedings
Under the current law, spouses cease to be each other’s legal and forced heirs only upon divorce, i.e. once the divorce judgement is effective. With the new law, in the event of death during the divorce proceedings, the surviving spouse will (under certain conditions) lose his status as a forced heir. The same principles will of course apply by analogy if the death occurs during proceedings for the dissolution of a registered partnership. However, the surviving spouse or registered partner will remain a legal heir until the divorce or dissolution judgement becomes effective. This means that in the absence of a will excluding the surviving spouse or registered partner, the surviving spouse or registered partner will retain the right to his/her share of the estate in the event of death before the divorce or dissolution judgement comes into force. It will therefore be essential to take new testamentary provisions when initiating divorce or dissolution of registered partnership proceedings.
Increase of the testamentary freedom in the presence of a usufruct in favour of the surviving spouse or registered partner
In this case, the testamentary freedom increases from ¼ of the estate to ½ of the estate. Thus, the surviving spouse or registered partner who will be favoured to the maximum extent by the testator (in competition with his descendants) will benefit from the full ownership of the testamentary freedom, i.e. ½ of the estate (instead of ¼ currently), and the balance, i.e. the other half of the estate, in usufruct.
Clarification of the treatment of the allocation of an additional share of the profit to the surviving spouse or registered partner by marriage contract or property agreement
Under the current law, it is possible to grant the entire profit made during the marriage to the other spouse by marriage contract. However, it is unclear whether the allocation of an additional share of the profits to the surviving spouse by marriage contract constitutes a gift inter vivos or mortis causa. The new law definitively settles this question by providing that the allocation of the entire benefit to the surviving spouse or registered partner must be qualified as an inter vivos gift. With this solution, the protected shares calculation mass will be higher and the protected shares of all forced heirs (common descendants, non-common descendants and surviving spouse or registered partner) will be calculated in the same way.
Conclusion and Next Steps
The legislative changes in inheritance law planned for 1 January 2023 are significant. As such, it is advised to start updating one’s estate planning and, in particular, to clarify whether the “reduction to the legal protected share of an heir” in a will drafted before 1 January 2023 is to be interpreted in accordance with the old or the new law.
Furthermore, it is also advised to make new testamentary provisions from 1 January 2023 to exclude one’s spouse or registered partner in the event of divorce or dissolution proceedings pending from that date.
In parallel, the revision of inheritance law will also facilitate the transfer of a family business[2]. In this regard, the Federal Council has suggested additional legislative measures which have so far been favourably received in the consultation procedure[3]. The Federal Council’s message will probably be presented to the Swiss Parliament later this year, with a view to have a potential entry into force of the new legal provisions on the transfer of businesses by succession also on 1 January 2023. From a chronological point of view, it would indeed be consistent to set a single date of entry into force for all legislative amendments concerning Swiss inheritance law.
Last but not least, it is also noteworthy that an amendment to Chapter 6 of the Private International Law Act is also in progress with a view to coordinating the system with the European Regulation on International Successions and, in particular, with a view to granting Swiss binationals the possibility of choosing the law (professio juris) and jurisdiction of the State of their other nationality for the settlement of their succession. All these changes will certainly shake things up in the traditional Swiss estate planning landscape!
This article is also available in German and French.
[1]FF 2020 9617, Code civil suisse (Droit des successions), Modification du 18 décembre 2020 (https://www.fedlex.admin.ch/eli/fga/2020/2688/fr).
[2] For further information on this question, see publication « Transmission d’entreprises par succession – Aperçu des modifications législatives à venir » dated 21.04.21 (https://mll-legal.com/wp-content/uploads/2021/04/16_Stephenson_Fokiades-1.pdf).
[3]Avant-projet de révision du code civil (transmission d’entreprises par succession) du 10 avril 2019 (https://www.bj.admin.ch/dam/bj/fr/data/gesellschaft/gesetzgebung/erbrecht/unternehmensnachfolge/vorentw-f.pdf.download.pdf/vorentw-f.pdf).
