Following parliamentary debate, a new law of succession will come into effect in 2023 in Switzerland. The new legal provisions will apply to all estates of persons who die on or after January 1, 2023.

Today, the system provides, among other things, that the legal reserve allocated to a descendant is ¾ of his or her inheritance right; that of the surviving parents is ½ each; and the legal reserve of the surviving spouse or registered partner is 1/2 (art. 471 CC).

The major changes planned for 2023 are in the legal allocation of the hereditary reserves. Indeed, the reserve share of the descendants is reduced to half of the legal share (½), thus ¼ of the estate; and the reserve share of the surviving parents will be eliminated.

However, the decedent's legal partner will still be awarded ½ of the reserve. In addition, there is still no right to the estate for the cohabitant.

This new distribution of legal shares gives the testator greater flexibility in the distribution of his or her estate. Now, half of the total estate can be distributed freely by the testator, instead of ⅜ of the estate previously.

Implications for usufruct:  

Spouses/registered partners maintain the possibility of providing for the granting of a usufruct on the entire share of the estate devolving to the joint children. However, they can extend this advantage granted to the partner; indeed, they can now attribute half of the estate in full ownership to the spouse/registered partner (i.e. the available portion of ½ of the estate, instead of the ¼ currently) and the other half in usufruct (½ instead of the ¾ currently).

However, in the event that the spouse / registered partner remarries or enters into a new registered partnership, he/she loses the usufruct on the children's inheritance reserve. The latter become full owners of their share of the estate, which is no longer subject to a usufruct.

Couple involved in divorce proceedings:

As soon as divorce proceedings or the dissolution of a registered partnership are initiated, the protection of the inheritance reserve will cease, even before the divorce or registered partnership is finally pronounced.

For this purpose, it is sufficient that:

- a divorce proceeding has been initiated by joint petition, or

- the spouses have lived separately for at least two years, and

- one of the spouses dies, and

- that this deprivation of inheritance is provided for in the deceased's will.

Finally, the surviving spouse will legally lose:

- his or her reserved portion of the estate

- his or her rights resulting from dispositions of property upon death

- the gifts provided for in the marriage contract.

Inter vivos gifts:

Whereas the current law provides that a gift made by the testator after the conclusion of a contract of succession may be voidable only if it contravenes the provisions of the contract of succession or if there is an intention to prejudice the instituted heirs, the new law of 2023 will allow the contracting party to the contract of succession to object to dispositions upon death or liberalities between living persons without the need to prove that they cause prejudice to the contracting party.

This brings us closer to a restrictive practice in the freedom of the testator to dispose of his property. 

Furthermore, the reform modifies the order in which reductions of gifts can be made in the event of a violation of the legal reserve. Until the reserve is reconstituted, the order of reduction is as follows:

1.     Acquisitions on account of death resulting from the law

2.     Gifts in lieu of death

3.     Gifts between living persons

Clarity for Pillar 3a:

Pillar 3A pension assets will now be included in the calculation of reserves (for their surrender value) and will not be included in the estate.

This provision, which is already in force but vague at present, will be expressly written and clarified in the text of the law.

In conclusion, we are moving towards a modernization of the Swiss inheritance law. The Swiss Confederation fills its gaps in the field of inheritance law by means of standards that are already applicable in many other European countries.

Jacques DEGORS & Ilona ROUSSEL

Sources : ww.ubs.com / www.bdo.ch / arpr.ch / www.mll-news.com