The revised inheritance law is intended to give the testator greater freedom of disposal. The motivation behind this is to be found above all in the greatly changed realities of life and family forms. Some changes and their status are shown below:
Reduction of the compulsory portions of the descendants and deletion of the compulsory portions of the parents
According to the law still in force, the compulsory portion of the testator’s children ¾ of the legal right to inherit. The new provision provides for a reduction of the compulsory portion at ½ of the statutory right to inherit.
At the same time, the compulsory portion of the parents is to be deleted.
Only the compulsory portion of the spouse or registered partner remains with a ½ of the statutory right to inherit.
With regard to the regulation of the new compulsory portions, Parliament was able to reach a full agreement on 22 September 2020. There are therefore no differences between the two Councils in this respect.
The revision thus allows the testator to dispose more freely of his or her assets. For example, the testator could thereby benefit his or her de facto life partner and their children more. The reason for this is that the reduction of the compulsory portions will increase his freely available portion. It is also intended to facilitate succession planning in family businesses, which means that businesses can remain more stable and jobs can be preserved.
Removal of the right to the compulsory portion in the event of death during divorce proceedings
The revision requires that in the event of the death of one of the spouses during divorce proceedings or during proceedings to dissolve the registered partnership, the surviving partner is no longer guaranteed the right to the compulsory portion. The main idea behind this is to take into account the will of both parties to dissolve the partnership.
Both chambers also agree in this case that the surviving spouse or registered partner should no longer be able to claim a compulsory portion if the testator dies during the divorce proceedings. If divorce proceedings of a testator are still pending, he/she will be regarded under inheritance law as if he/she had not been married.
Entitlement to support of the life partners
In its dispatch, the Federal Council proposes that the testator’s de facto life partners be granted a claim to support in the event that they find themselves in financial difficulties following the death of the testator. The aim is to secure at least the minimum subsistence level of the partner and to prevent the partner from receiving social assistance benefits. A basis for entitlement can be established, for example, if the partner was not gainfully employed during the cohabitation due to household, childcare or caring for a family member and no assets will be left to him/her after the death of the testator.
Opposing opinions were expressed in the Council of States. In some cases, it was considered that the pension was unnecessary or that the revision of the law of succession would in any case extend the testator’s freedoms. There was also talk of “paternalism of the testator”. Other voices were of the opinion that, in the worst case, the pension could even be paid against the will of the testator or precede the claim to support by the descendants. The National Council also opposed this proposal, arguing that the implementation of the scheme would be too complex. Furthermore, it would be a contradiction in terms if the reduction of the compulsory portion of the descendants were to oblige the testator to provide financial support for the life partners. The proposal was therefore rejected by Parliament.
Reduction of the proposal allocation in the event of breach of the compulsory portion
According to Art. 216 para. 1 of the Swiss Civil Code, the spouses may assign the proposal to each other, i.e. the participation of the other in the spouses’ achievement. In the case of joint children, their compulsory portion could thus be infringed, but this is excluded for non-common children under Art. 216, para. 2 of the Civil Code.
However, the Federal Council now proposes that the joint children may demand a reduction of this allocation if the surviving spouse remarries. The Council of States concurs with the opinion of the Federal Council. On the other hand, the majority of the National Council demands the deletion of Art. 216 of the Swiss Civil Code. Accordingly, there are still disagreements in parliament with regard to this proposal, which need to be resolved.
Further changes in inheritance law
Finally, previous ambiguities regarding the calculation of the estate are finally to be eliminated by the revision: The tied self-insured pension (pillar 3a) is not part of the inheritance, but it is subject to reduction in the event of a breach of compulsory portions. The same applies to agreements in a marriage or property contract to transfer the joint property under matrimonial property law in full to the surviving spouse.