Zbornik Radova Pravnog Fakulteta u Nišu (Jan 2023)
Reform of inheritance law in the Swiss confederation (reform phase I)
Abstract
In this paper, the author sheds light on the 2020 reform of the Swiss inheritance law, which was instituted by amending the succession law provisions of the Civil Code of the Swis Confederation (2020). The new provisions have been in force since January 2023. The research on this subject matter is aimed at determining the scope and the quality of the revised Swiss legislation on intestate succession. To this effect, the author focuses on a number of new provisions related to statutory heirs: reduction of the children's protected share (forced heir ship portion of the decedent's descendants); abolition of the parents' protected share (forced portion of the decedent's parents); loss of the forced portion for the surviving spouse or same-sex partner in a registered civil partnership in case the divorce proceeding or the proceeding for dissolving a registered civil partnership has been initiated but a spouse or a registered civil partner dies before the proceeding is terminated; a qualitatively different concept of contractual freedom embodied in inheritance contracts; the impact of the "three-pillar system" of the Swiss pension and disability insurance on the exercise and protection of the right to forced portion; changes and nomotechnical improvements of provisions concerning the order of gratuitous donations from which the forced heirs' portion is settled. For the purposes of this paper, the author applied the dogmatic legal science research method, the normative legal research method, and the legal history research method. In the author's opinion, the new provisions on intestate succession are largely aimed at ensuring a greater freedom of testamentary disposition of gratuitous donations, both inter vivos and mortis causa. However, the new legal solutions seem to be insufficiently aligned with the social circumstances in contemporary Switzerland because the right to statutory inheritance is not recognised to an extramarital partner, whereas it is granted to a spouse or a same-sex partner from a registered civil partnership, even though extramarital partnerships are equally present in real life as marriage and registered same-sex partnerships.
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