Revision of the law of succession: Does my will still correctly reflect my wishes?

• Inheritance Law
• Private Clients
• SME

The revision of the law of succession as of 1.1.2023 brings with it various innovations. 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 that has already been drawn up effectively expresses the testator’s last will and testament under the new inheritance law or whether there are any ambiguities.

Rudolf and Rita live in cohabitation (are not married) and have three children together. If there is no will and Rita dies, the three children each receive one third of the estate. Rudolf has no claim to inheritance. In contrast to a spouse, cohabiting partners have no legal claim to inheritance. This is the case under both the current inheritance law and the new inheritance law. Children are protected by a compulsory portion: before the revision with three quarters of the legal share of the inheritance, now in the revised inheritance law with half of the legal share of the inheritance.

Rita could stipulate in a will that the three children are entitled to the compulsory portion and Rudolf should receive the remainder (freely available quota). It could be Rita’s aim that the three children and Rudolf should each receive the same amount, namely a quarter each. This would also be achieved with the will according to the provisions in the law of succession before the revision, since the compulsory portion of the three children is one quarter each (3/4 compulsory portion of 1/3 legal share of inheritance = 3/12 = corresponds to 1/4).

If Rita wrote the will some years ago and will not die until after 1 January 2023, the compulsory portion of the three children is only 1/6 each (1/2 compulsory portion of 1/3 legal entitlement instead of ¾ compulsory portion of 1/3 legal entitlement). Cohabiting partner Rudolf receives the other half of the estate (3/6 = corresponds to ½). Thus, not all 4 parties involved (3 children and cohabiting partner Rudolf) would receive the same amount.

If this consequence does not correspond to Rita’s will under the new inheritance law, she must amend her will and stipulate anew that both Rudolf and each of the three children should each receive a quarter of the estate.

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