With regard to the period from 2023, it must be examined whether the provisions made in a will (testamentary disposition) or inheritance contract correspond to the will of the persons concerned if the testator dies after 31 December 2022.
The statutory “shares of inheritance” determine who inherits how much by law if there is no will. Concrete example: The inheritance shares of the surviving wife and the children (descendants) who inherit with her each amount to half. These statutory shares of inheritance do not change as a result of the revision.
On the other hand, the compulsory portions (protected quota) will change from 2023, which will now only be due to the surviving spouse incl. registered partner and the descendants. By compulsory share, the legislator means the share of the inheritance to which the “compulsory-share-protected” heirs are entitled as a minimum (i.e. the protected share). If an heir wishes to dispose of his or her assets in a will or inheritance contract, he or she must always take these compulsory portions into account (if he or she does not want to risk a challenge).
Concrete example: If the wife and children inherit together, they each share the inheritance in half (the inheritance shares of the surviving wife and the children are therefore 1/2=50% each). And how much of these two halves of the inheritance is now protected as a minimum for the wife and how much for the children by the “compulsory shares” (protected quota of the inheritance shares)?
Answer for the wife: Half (50%) of her inheritance share is currently protected as a compulsory share. The surviving wife is therefore entitled to at least a quarter of the entire inheritance (1/2=50% of 1/2=50% results in 1/4=25% of the inheritance) if she inherits together with the children. In general, the following applies: The inheritance share of the surviving spouse is always protected to the extent of half as a compulsory share (minimum quota). This does not change after 2023.
Answer for the children: Currently, three quarters (75%) of their inheritance share is protected as a compulsory share. The children are therefore entitled to at least three-eighths of the entire inheritance (3/4=75% of 1/2=50% results in 3/8=37.5% of the inheritance) if they inherit together with the wife. From 2023, the compulsory share (protected quota) of the children is reduced to half of their inheritance share. In competition with the wife, the children are thus entitled to at least a quarter of the inheritance from 2023 (1/2=50% of 1/2=50% results in 1/4=25%, thus the same as the wife).
In general, the following applies from 2023: Both the inheritance shares of the children and the inheritance share of the surviving spouse are always protected to the extent of half as a compulsory share (minimum quota).
If the inheritance shares of the surviving spouse and his or her children (descendants), which are protected by the compulsory portion, each amount to a quarter and thus together to half from 2023, the other half (50%) of the inheritance will be freely available from 2023 (so-called freely available portion or quota; until the end of 2022 this portion amounts to only 3/8=37.5%).
The new inheritance law stipulates a prohibition of disposal to the extent of the obligations under the inheritance contract (and at least vis-à-vis the parties to the inheritance contract), which gives the heirs the possibility of contesting gifts.
With the initiation of divorce proceedings, the (virtual) protection of the compulsory portion ceases. This does not change the inheritance share. However, the entire inheritance share of the spouse becomes freely available (and each spouse in divorce can completely disinherit the other thanks to the discontinuation of the “compulsory share”). Likewise, all claims from wills (and in general dispositions of death) and marital contract beneficiaries cease to exist.
Have your existing wills (testamentary dispositions) or inheritance contracts checked and explained by our specialised inheritance lawyers with regard to compulsory portions and gift reservations. In any case, it is a good opportunity to have wills and inheritance contracts (including marriage contracts) that were drawn up years ago reviewed independently and neutrally in order to adapt them to current and future circumstances.
In separate articles, we will use practical examples to show you what consequences the inheritance law valid from 2023 may have on existing wills (testamentary dispositions) and inheritance contracts if they are not adapted.
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