The key point of the reform lies in the modernization of the legitime that is, the regulations regarding the portion of the estate which passes by law to the family and dependents in a succession.
1. Updating of grounds for disinheritance
In an expression of family solidarity, descendents, parents, spouses or common-law partners are due half of the estate as the legitime as long as they have not been excluded by the testator, either in a testament or succession agreement, from the legal succession.
In order to allow the testator more freedom (so the estate can be divided according to their wishes upon their death) the grounds for disinheritance have been reviewed in order to allow the testator to strip forced heirs of their rights.
On the one hand, and from this time forward, the grounds for disinheriting a forced heir are uniform and valid for descendents, parents, spouses and common law partners. On the other hand, those individuals who have a relationship with the testator similar to that of a spouse, common law partner or child (for example, stepchildren or foster children) will be protected. The testator is now also likewise allowed to disinherit a forced heir who has been irrevocably sentenced to at least one year of prison without parole, and whose right to the legitime is inadmissible.
2. Delay in payment of the legitime
Under previous law, when the estate was mainly composed of a family company or property, the heirs were generally forced to transfer those assets following the testator’s death in order to pay the legitime.
With the reform of succession law, heirs will be protected from the forced heirs’ claims by their right to postpone payment. Said right is subject only to basic requirements, and thus protects heirs from hasty transfers or the destruction of estate assets.
3. Flexible statute of limitations for action for legitime complement
According to the previous regulation, the forced heir can request that any assets donated prior to the death of the testator be taken in account when calculating the estate or the legitime, as long as the donation had taken place in the 10 years prior to the testator’s death. As regards the calculation of the complement, the succession law reform stipulates that the degree to which the donation is taken into account will depend on how many years have passed; if more than 10 years separate the donation from the testator’s death, then the donation will not be taken into account for calculation purposes. For donations between divorced spouses, the statute of limitations will expire 10 years after the dissolution of the marriage.
4. Remuneration for descendant’s care of testator through inheritance
Once the reform takes effect, a descendent of the testator will have the right to claim compensation, regardless of whether or not he/she renounced employment wages for the care of the testator at the time the care was rendered. The compensation amount is subtracted from the inheritance and the remaining amount is distributed according to the succession allotment.
5. Reduction in the statute of limitations for actions in family and succession law matters
To avoid conflicts, the statute of limitations for actions in family and succession law matters has been adapted to that of the general statute of limitations of the 2001 reform of obligation rights, thus reducing the period from thirty to three years. A longer period is only established in exceptional cases.
For further information please contact Florian Frank: [email protected]