On January 1, 2023, new provisions will come into force in Swiss inheritance law. They give more design options and greater flexibility for estate planning. For patchwork families and cohabiting couples in particular, but also for testators without descendants, the right of self-determination will be extended.
1. More leeway for the testator
The testator can now bequeath a larger part of his or her assets to “anyone”. The surviving spouse or cohabiting partner can thus be left more than before by means of a will, while the obligatory share of the inheritance (compulsory share) is reduced. In certain cases, the new law even allows the testator, if he or she is not married and has no children, to bequeath everything to the cohabiting partner, a special neighbor, or the beloved pet.
However, when making a will, possible tax consequences must be taken into account. In most cantons, high inheritance or gift taxes are levied on bequests to distant relatives and especially to non-relatives, such as cohabiting partners, while bequests to spouses and descendants may be tax-free.
The higher flexibility in the rules of disposition and allocation also facilitates the transfer of family businesses. Entrepreneurs are therefore advised to take this greater flexibility and the new scope for structuring into account in their estate planning and to capture it in a will or inheritance contract.
2. Overcoming stumbling blocks
The statutory formal requirements must also be complied with under the new law: a will issued without a notary must be handwritten, dated and signed. However, if it was written before January 1, 2023, it is essential to state whether it is to be interpreted in accordance with the new provisions after the new law comes into force.
Attention must also be paid to the legal inheritance rights of the parental family tree: This is because if a testator without descendants has not provided for anything in the will, the members of the parental branch are entitled to a statutory share of the inheritance. If married couples or couples in a registered partnership and cohabiting couples without descendants want to prevent this, this must be stipulated in the will, as the compulsory share of the parental branch s abolished in the new law.
Finally, inheritance contracts that were drawn up before January 1, 2023, should be reviewed as of 2023 and amended if necessary: the testator must stipulate which lifetime bequests are to be permitted despite the inheritance contract. Otherwise, heirs may be able to contest the inheritance contract, depending on the circumstances.
3. Recommendation for action: redraft the will, review the contract of inheritance
In order to take advantage of the room for manoeuver created by the new inheritance law provisions, you must take action: we recommend that you review existing wills and, if necessary, redraft or supplement them so that the succession under the new law also corresponds to the will of the testator.