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Law on compulsory portions

Due to a tragic death in their circle of acquaintances, the married couple Theo and Martha are discussing the consequences under inheritance law of someone dying, together with their friends Rolf and Rita, an unmarried couple who have no children. Theo and Martha have two children, so in the event of Martha predeceasing Theo, the latter would form a community of heirs with both children. Martha has drawn up a will and has stated in her final wishes that the children should receive the compulsory portion and her husband Theo the remaining estate.

Under Switzerland’s new inheritance legislation, a compulsory portion of ½ of the statutory claim applies to her two descendants. The compulsory inheritance portion is ½ for the husband and ½ for the two descendants together. In other words, the compulsory portion is for both children ¼.

Things look rather different for Rolf and Rita. As cohabiting partners, neither party has any right of inheritance vis-à-vis the other even under the new legislative provisions. In the event of one of them dying without having left a final will, the estate of the deceased partner would revert to their parents – or in the event of the latter having predeceased them, to their siblings and the descendants of these siblings (i.e. nieces, nephews). Rolf and Rita’s parents no longer have any claim to a compulsory portion. In other words, Rolf and Rita can now dispose of their entire estate in whatever way they wish. They are therefore free to appoint each other as their sole heir without restriction. However, Theo asks if that would make sense in all situations, giving an example of what he means: In the event of Rolf and Rita being involved in a car crash that results in Rolf dying on the spot and Rita dying five days later in hospital, Rolf’s entire estate would pass to Rita. Following Rita’s death just a few days later, the entire estate – now augmented with Rolf’s estate – would pass to Rita’s parents, or if they have predeceased her to Rita’s siblings, in the absence of any testamentary provisions to the contrary. And that would hardly be what Rolf would have wanted.

Prohibition of gifts

Theo and Martha explain to Rolf and Rita that they intend to sign an inheritance agreement with their children involving a renunciation of inheritance, in order to provide reciprocal protection upon the death of the first spouse. An important point to note here is that a prohibition of gifts is now enshrined in the new inheritance law. If Theo and Martha enter into an inheritance agreement with their children, the parents are no longer free to make any gifts to third parties after concluding this agreement, as this would have the effect of reducing their children’s inheritance claim. Gifts continue to be permitted if these are occasional gifts, or if the spouses have reserved the right in the inheritance agreement to continue to make gifts even after conclusion of this agreement. Any gift that violates the prohibition of gifts may be contested by the heirs upon the death of the testator.

Review existing arrangements

Any wills and inheritance contracts already in place should be looked at again, particularly in light of the changes to compulsory portions, the resulting increase in the freely disposable portion, and the prohibition of gifts. With this change in the law and the new possibilities it opens up as regards beneficiaries, existing arrangements can be adapted or new wills or inheritance contracts drawn up to ensure that surviving beneficiaries are (optimally) provided for – covering each individual and their specific financial and life situation. This also applies to cohabiting partners in particular, as costly inheritance renunciation agreements will no longer have to concluded now that the compulsory portion for parents has been eliminated.