The revision of the law of succession as of 1.1.2023 brings with it various innovations (read more). One of them concerns the circle of heirs protected by the compulsory portion and the amount of the compulsory portions. It is therefore important to check carefully whether a will already drafted effectively expresses the testator’s last will and testament under the new inheritance law or whether there are any ambiguities.
Mr and Mrs Zweifel have been married for 30 years and have a daughter Ronja. If the wife dies and does not leave a will, the husband and the daughter each receive half of the estate, which corresponds to the legal share of the inheritance. This does not change with the new inheritance law, which has been in force since 1 January 2023.
However, if a will exists which was made before 1 January 2023 and reads as follows: “I give my daughter a compulsory share of three-eighths”, the daughter would have received 3/8 of the estate and the husband the remainder (5/8) if the wife had died before 1 January 2023.
However, if the wife dies after 1 January 2023, the children’s compulsory share becomes smaller and no longer amounts to ¾ of the statutory share of the estate, but only ½. Thus, Ronja’s compulsory share now amounts to ¼ (½ compulsory share of the ½ statutory share of the inheritance) instead of 3/8 as before.
Quotas protected by compulsory shares, which apply after January 1, 2023
The question arises as to what the wife wanted to achieve with the will or what her effective last will and testament was. Did she want to leave as much as possible to the husband and therefore put the daughter on the compulsory portion? Or did she want to leave the daughter exactly 3/8 of the estate?
If the will had read: “I put my daughter on the compulsory portion”, it would have been expressed in an unambiguous way that the compulsory portion would apply which was legally valid at the time of death. In the present case, this would be a compulsory portion of 3/8 in the event of the wife’s death before 1 January 2023 and a compulsory portion of ¼ from 1 January 2023. When drafting wills or marriage and inheritance contracts, unclear wording should be avoided. This applies in particular in connection with the revision of the law of succession. Wills or inheritance contracts that have already been drawn up should also be checked and, if necessary, amended.
AMATIN AG Rechtsanwälte / Rechtsberatung │ Attorneys at Law / Counselors │ Conseiller Juridiques / Avocats
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Ausschnitt aus: Génot, François (2014): „Commonplace 3“, www.francoisgenot.com
