New inheritance law 2023 - Who gets how much?

The new inheritance law comes into force on January 1, 2023. The revision will bring some far-reaching changes for single persons as well as for spouses and registered partners. The revised provisions will apply to all inheritances from January 1, 2023 and will also apply to wills and inheritance contracts drawn up earlier.

In the following article you will find an overview of the most important changes.

Right to a compulsory portion

The most important change in the new inheritance law concerns the right to a compulsory portion. The compulsory portion for descendants will be reduced from ¾ to ½ of the statutory inheritance share. Furthermore, the revision completely abolishes the parents' compulsory portion (previously ½ of the statutory inheritance share). However, the compulsory portion of the surviving spouse or registered partner remains unchanged at ½ of the statutory inheritance share.

Most favored spouse scenario: If the testator leaves his spouse and descendants as heirs, he can now freely dispose of ½ of his estate. In this way, he can give his descendants a compulsory portion of ¼ and give the spouse his freely disposable estate of ½ in addition to the compulsory portion of ¼. This means that the surviving spouse receives ¾ and the descendants ¼. Conversely, the deceased can leave the wife a compulsory portion of ¼ and the descendants receive ¾ in this case.

The same applies if, for example, the testator only leaves descendants (and no wife): The testator can set the descendants to the compulsory portion of ¼ and allocate the remaining ¾ of the estate to a charitable organization, for example.

It is important to note that the statutory inheritance shares remain unchanged under the new law. This means that if a testator has not made a will, the statutory succession applies, which will not be changed by the revision. The matrimonial property regime also remains unchanged, meaning that the matrimonial property rights of spouses must still be determined in advance.

The new provisions on the right to a compulsory portion are to be welcomed, as they considerably increase the testator's room for maneuver. When planning your estate, the lower compulsory portions allow you to decide more flexibly what and how much you want to leave to your loved ones and third parties. 

No spouse's compulsory portion if divorce proceedings are pending

Under current law, a spouse retains the right to a compulsory portion even during divorce proceedings if the other spouse dies during the divorce proceedings. Under current law, the right to a compulsory portion only expires when the divorce is final.

The following now applies: If a spouse dies while divorce proceedings are pending, the surviving spouse loses his or her entitlement to a compulsory portion if

• the spouse dies while divorce proceedings are pending; and

• divorce proceedings are initiated at the joint request of both parties; or 

• the divorce proceedings were continued in accordance with the provisions on divorce proceedings at the joint request of both parties; or

• the spouses have lived apart for at least two years.

However, without a corresponding last will and testament, the surviving spouse retains his or her statutory inheritance entitlement as before until a final divorce decree has been issued.

This change is also to be welcomed. In divorce proceedings, there is probably usually no need to award the surviving spouse the compulsory portion (or even the statutory inheritance if there is no testamentary disposition). However, the length of the divorce proceedings is not, or only to a limited extent, in the hands of the divorcing spouses. In order to deprive the spouse of their inheritance entitlement during the divorce proceedings, it is therefore advisable to amend the testamentary disposition accordingly at the time of separation. 

Increase in the free quota for usufruct

The surviving spouse can now be granted ownership of half of the estate. He or she can also be granted usufruct of the other half. With this higher proportion of ownership, the preferential treatment of spouses is further extended. Older spouses are less reliant on this most-favored-nation treatment, especially if they have a good occupational pension plan. With regard to future retirement and nursing home contributions, it is more advisable in such cases to leave descendants their full statutory inheritance share. 

Restrictions on gifts after the conclusion of an inheritance agreement

Current law stipulates that the parties are generally free to dispose of their assets after concluding an inheritance contract. The principle of freedom of gift therefore applies today. The only gifts that are not permitted (and therefore subsequently contestable) are those made with the obvious intention of causing damage. There is now a change to the fundamental prohibition of gifts after the conclusion of an inheritance contract. Dispositions mortis causa and gifts inter vivos - with the exception of customary occasional gifts - can be contested under the new law if they are incompatible with the obligations arising from the inheritance contract and were not reserved in the inheritance contract. 

Conclusion and recommendation

Inheritance law in its current form has existed for over a hundred years without any significant changes and is no longer up to date due to the changed realities of life. The most important change is the right to a compulsory portion. The reduction in the compulsory portions increases the testator's freedom of disposition, which in particular facilitates the transfer of family businesses. The statutory inheritance shares, on the other hand, remain unchanged, which means that the new inheritance law does not change anything for constellations in which the estate was not disposed of by will.

It is important to know that the new inheritance law applies to all deaths that occur from January 1, 2023, regardless of the date of the last will and testament or inheritance contract. As the new inheritance law will therefore also apply to existing inheritance contracts and wills, certain questions of interpretation may arise in the future. If a testator has already stipulated in his will that his son, for example, is to receive a compulsory portion, the question will arise under the new law as to whether the higher compulsory portions under the old law or the new lower compulsory portions apply. Even with regard to the new law on compulsory portions, it is worth reviewing and, if necessary, amending existing testamentary dispositions. It should be made clear which applicable law is to be used to determine the compulsory portion.

The new ban on gifts must also be observed. Here, too, it is important to create clarity and, if necessary, to adapt the inheritance contracts and, for example, to supplement them so that the testator is granted the right, at least to a certain extent, to make gifts during his or her lifetime. When drafting marriage and inheritance contracts, the extent to which the loss of the right to a compulsory portion or inheritance share during divorce proceedings should be taken into account should then be carefully examined.
In connection with the business succession already discussed above, the second stage of the revision of inheritance law, which has not yet been adopted, will bring further changes that should facilitate sensible succession solutions. However, we remain of the opinion that, despite numerous new provisions, timely regulation of company succession will bring greater clarity and should therefore be sought.

In summary, it is therefore advisable to draft testamentary dispositions and marriage contracts in such a way that they correspond as closely as possible to the testator's wishes both in the event of death before and after the date of entry into force of the revision of inheritance law and do not lead to problems of interpretation.