Swiss inheritance law essentially dates from the time of the creation of the Civil Code at the beginning of the 20th century. In order to take account of social developments, inheritance law is currently being revised. Due to the large number and complexity of the questions raised, the Federal Council has decided to take on this project in three stages:

1) expansion of the testator’s capacity to dispose of property,

2) facilitation of succession under inheritance law, and

3) technical revision proposal.

While parliamentary deliberations on the 2nd and 3rd stages are still pending, the 1st stage entered into force on 1 January 2023. We would be happy to provide you with an overview of the most important innovations of the first stage and support you in clarifying whether there is a need for action in the context of your estate planning.

1. Abolition of parental compulsory portion rights and reduction of compulsory portion quotas for descendants

With the intention of strengthening the testator’s autonomy and expanding their ability to make dispositions, the right of parents to a compulsory portion was abolished as of 1 January 2023 and the compulsory portion quota for descendants was reduced from three quarters to half of the statutory inheritance entitlement. The testator now always has at least half of the inheritance at their free disposal.

The circle of legal heirs (descendants, parents, grandparents, spouse or registered partner and, subsidiarily, the community) and the legal shares of the inheritance remain unchanged. If the testator wishes to take into account persons outside the circle of legal heirs (e.g. de facto life partner, stepchildren or foster children, etc.) or to bring about a change in the inheritance quotas, they require a disposition of property upon death (testamentary disposition or contract of inheritance).

2. Loss of the right to a compulsory portion and legal beneficiaries during divorce proceedings

Until 1 January 2023, the statutory right of inheritance and the right to a compulsory portion between spouses only ceased to exist upon a final divorce decree. Now, the surviving spouse loses their right to a compulsory portion if

1) divorce proceedings have been initiated on joint request or continued on joint request in accordance with the provisions on divorce or

2) the spouses have lived separately for at least two years.

In such a case, the compulsory portions shall apply as if the testator were not married. With regard to the statutory spousal inheritance right, however, the legal situation remains unchanged, i.e. the statutory spousal inheritance right continues to lapse only upon the entry into force of the divorce decree. If the testator wishes to prevent the surviving spouse from assuming the statutory succession upon death during the ongoing divorce proceedings, they must actively withdraw the statutory inheritance entitlement from the surviving spouse by means of a disposition of property upon death. If they fails to do so, the surviving spouse remains the legal heir until the divorce decree becomes final. The same applies to the dissolution of a registered partnership.

The initiation of divorce or dissolution proceedings is intended to end the community of fate established by marriage or registered partnership. On the assumption that in the event of the death of one of the two persons during divorce and dissolution proceedings, the surviving person should no longer benefit in the same way as before the initiation of the proceedings, the legislator now provides by operation of law, in addition to the loss of the right to a compulsory portion, for a loss of benefits of the surviving spouse from dispositions of property upon death, from a marriage contract concerning divergent participation in the proposal or from a property contract concerning divergent division of joint property. If the spouses or registered partners wish the continuation of the beneficiary status even during ongoing divorce and dissolution proceedings, this must be explicitly stated in the marriage contract or property contract and in the disposition of property upon death.

3. Increase of available quota in case of usufruct

Already under the previous law, the testator could assign to the surviving spouse a usufruct of the entire share of the inheritance accruing to the joint descendants. In this case, the usufruct takes the place of the statutory right of inheritance, i.e. the spouse loses their inheritance status and thus their right to a compulsory portion. The portion of the estate available in addition to the usufruct is no longer three quarters but half since 1 January 2023. With the increase of the available quota, the testator was given the possibility of a more far-reaching inheritance-law benefit. This means that the surviving spouse can, for example, be granted a beneficial interest in one half of the estate, which is to go to the joint descendants, and ownership of the other half by testamentary disposition.

4. Clarifications and transitional law

The revision stage 1 was also used to clarify controversial issues in connection with the matrimonial property regime by way of proposal or overall property allocation, tied personal pension provision (pillar 3a), the calculation of compulsory portions and the order of reduction. Additionally, it should create legal certainty.

The revision entered into force on 1 January 2023. The date of the deceased’s death is decisive for the applicability of the new provisions, i.e. the new law is applicable to an inheritance in the event of death after 31 December 2022 even if a relevant disposition of property upon death was validly made before the new law came into force.

However, the entry into force of this first stage does not mark the end of the inheritance law revision; stages 2 and 3 will follow.

If you wish to make use of the extended scope for estate planning, our specialists will advise you on drafting or adapting a testamentary disposition or a contract of inheritance. Our in-house notary is available to you at any time for notarial services in the Canton of Schwyz.