New inheritance law from 2023 – everything you need to know

• Inheritance Law
• Private Clients
• SME

From 2023, the law on inheritance will expand the possibilities for making dispositions. Testators will be able to freely determine a larger share of their estate. The protected quotas (“compulsory portions”) have been reduced. It is therefore advisable to review existing wills and inheritance contracts (and marriage contracts).

The revised inheritance law came into force on 1 January 2023. It is therefore advisable to check whether the provisions made in a will (testamentary disposition) or contract of inheritance correspond to the will of the persons concerned.

Legal shares of inheritance

The statutory “inheritance shares” determine who inherits how much by law if there is no will. Concrete example: The inheritance shares of the surviving wife and the children (descendants) who inherit with her are each half. The revision of the law of succession did not change this legal provision.

“Compulsory shares” – what does this legal term mean?

On the other hand, the compulsory shares (protected share of the inheritance) will change as of 2023, which will now only be due to the surviving spouse incl. registered partner and the descendants. By compulsory share, the legislator means the share of the inheritance to which the “compulsory-share-protected” heirs are entitled as a minimum (i.e. the protected share). If a testator wishes to dispose of his or her assets in a will or inheritance contract, he or she must always take these compulsory portions into account (if he or she does not want to risk a challenge).

Concrete example: Wife and children each share the inheritance in half (the inheritance shares of the surviving wife and the children are therefore 1/2=50% each). And how much of these two halves of the inheritance is now protected as a minimum for the wife and how much for the children by the “compulsory shares” (protected quota of the inheritance shares)?

Answer for the wife: Half (50%) of her share of the inheritance is protected as a compulsory share. The surviving wife is therefore entitled to at least a quarter of the entire inheritance (1/2=50% of 1/2=50% results in 1/4=25% of the inheritance) if she inherits together with the children. In general, the following applies: The inheritance share of the surviving spouse is always protected to the extent of half as a compulsory share (minimum quota). This did not change with the revision.

Answer for the children: Before the revision, three quarters (75%) of their inheritance share was protected as the compulsory share. The children were thus entitled to at least three-eighths of the entire inheritance (3/4=75% of 1/2=50% results in 3/8=37.5% of the inheritance) if they inherited together with the wife. Since 2023, the compulsory share (protected quota) of the children is reduced to half of their share of the inheritance. In competition with the wife, the children are thus entitled to at least a quarter of the inheritance since 2023 (1/2=50% of 1/2=50% results in 1/4=25%, thus the same as the wife).

In general, the following applies since 2023: Both the inheritance shares of the children and the inheritance share of the surviving spouse are always protected to the extent of half as a compulsory share (minimum quota).

Freely available quota from 2023

If, since 2023, the inheritance shares of the surviving spouse and his or her children (descendants), which are protected by the compulsory portion, each amount to a quarter and thus together half, the other half (50%) of the inheritance is therefore freely available since 2023 (so-called freely available portion or quota; until the end of 2022, this portion was only 3/8=37.5%).

What else do you need to know?

The new inheritance law establishes a prohibition of disposition within the scope of the obligations under the inheritance contract (and at least vis-à-vis the parties to the inheritance contract), which grants the heirs the possibility of contesting gifts.

With the initiation of divorce proceedings, the (virtual) protection of the compulsory portion ceases to apply. This does not change the inheritance share. However, the entire inheritance share of the spouse becomes freely available (and each spouse in divorce can completely disinherit the other thanks to the discontinuation of the “compulsory share”). Likewise, all claims from wills (and in general dispositions of death) and marital benefits cease to apply.

And what should you do now?

Have your existing wills (testamentary dispositions) or inheritance contracts reviewed and explained by our specialised inheritance lawyers with regard to compulsory portions and gift reservations. In any case, it is a good opportunity to have wills and inheritance contracts (including prenuptial agreements) that were drawn up years ago subjected to an independent and neutral review in order to have them adapted to current and future circumstances.

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