Lawyer Monthly - February 2023

About Cecile Ringgenberg Cecile Ringgenberg practices at the Bar of Geneva in Switzerland. She is a doctor of law of Zurich University with several years of practice in international humanitarian law at the ICRC in Geneva and in Africa, as well as three years of practice in the law of international organisations at the European Organization for Nuclear Research (CERN). Among her achievements are a decision on documentary credit obtained with a colleague at the Federal Tribunal, making jurisprudence (BGer 4C.66/2004 of 01.06.2004), and her successful representation of victims in numerous international investment frauds. Contact Cecile Ringgenberg Attorney at Law Rue Michel-Chauvet 3, 1208 Genève, Switzerland Tel: +41 22 347 52 53 E: What impact has the recent revision of the Swiss law of inheritance had on wills? The purpose of the revision of the more than 100-year-old Swiss law of inheritance is to enable the law to embrace today’s new forms of life and relationships, such as partnerships outside marriage, serial relationships and patchwork families, following the mounting number of divorces. (Art. 470-472 Swiss Civil Code) The revision is mainly concerned with the reduction or elimination of compulsory portions of legal heirs. It will permit to better consider non-married partners – who even under the new law are still not legal heirs – as well as step-children and more. It will also leave more room for charities. Furthermore, it will allow for a greater part of a family enterprise to be transmitted to the heir willing to take over the enterprise, while hopefully enabling him to respect the now reduced compulsory portions of the other heirs. This may help to avoid the compelled sale of family enterprises in order to permit the lawful partition of the inheritance, as this was often the case up to now. The newly introduced reductions and eliminations of the compulsory portions are the following: Descendants The descendants formerly had a compulsory share equivalent to three quarters. They now have a compulsory share of one half of their part of the inheritance. (Old Art. 470 and 471 / New Art. 470 and 471 CCS) Parents The parents formerly had a compulsory share of one half. They have now no compulsory share at all. (Old Art. 470 and 471.2 / New Art. 470 and 471 CCS, no longer mentioning parents at all) Spouses During a Divorce Procedure (New Art. 472 CCS) Should a spouse decease during the divorce procedure, the surviving spouse will lose his or her compulsory share of one half in the joint inheritance, provided the divorce has been jointly introduced and the spouses have lived separately for at least two years. It is noted that the surviving spouse’s compulsory share of one half otherwise remains untouched. (New Art. 472 CCS) How are existing wills affected by the revision? The principle is that existing wills stay valid after the new law comes into effect. However, as the new law applies from 1 January 2023, the testator may want to decide if he wants to revoke his existing will and write a new will seizing the opportunity to distribute his assets more freely under the new law. Also, the existing will may not be clear as if it refers to the then-existing compulsory portion or if it may be replaced by a new revised compulsory portion. Therefore, it is recommended to review the existing will in any case in order to see if it should be retained or replaced by a will under the new law to clarify the situation. THOUGHT LEADER 59

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