The legal succession comes into effect when

• there is no (valid) will or no (valid) inheritance contract,
• if the will or the inheritance contract does not concern the entire inheritable assets of the deceased, or
• if the heirs do not receive the inheritance, for example because they have waived the inheritance.

Legal Heirs

The legal heirs include

• the spouse
• the registered partner
• the children and their descendants, i.e. the grandchildren, great-grandchildren, etc.
• the parents and their descendants
• the grandparents or their descendants
• the great-grandparents.

Attention: Persons related to the deceased by marriage have no legal right of inheritance. The same applies to life partners, provided that other legal heirs are present.

Attention: Children whose parents are not married are equal to those children whose parents are married.

Legal Right of Inheritance of Relatives

The relatives are considered in a specific order within the framework of the legal succession. There are four groups (parentelae):

1. the children and their descendants, i.e. the grandchildren, great-grandchildren, etc.
2. the parents and their descendants
3. the grandparents or their descendants
4. the great-grandparents.

The spouse of the deceased also has a legal right of inheritance. The right of inheritance of the spouse can exclude or reduce the right of inheritance of the relatives depending on the constellation.

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Principle of “Young before Old”

Between the four parentelae, the principle “young before old” applies within the framework of the legal succession: children before parents (and their descendants), parents before grandparents (and their descendants), grandparents before great-grandparents. It is therefore always necessary to determine the lowest parentela. Only this parentela then inherits. Several parentelae can never inherit side by side.

This principle ensures that first the own children and only subsequently the ancestors and more distant relatives are considered as a substitute.

1st Parentela

The 1st parentela includes the direct descendants of the deceased, i.e. children, grandchildren, great-grandchildren and further descendants. If there are persons in the 1st parentela, the 2nd, 3rd and 4th parentela inherit nothing.

Only if there is no one in the 1st parentela, the inheritance passes to the 2nd parentela within the framework of the legal succession.

2nd Parentela

The 2nd parentela includes the parents of the deceased and their descendants, i.e. the siblings, nephews and nieces as well as further descendants.

If there is also no one in the 2nd parentela, because both parents of the deceased are no longer alive and there are no living descendants of the parents, the 3rd parentela is used within the framework of the legal succession.

3rd Parentela

The 3rd parentela includes the maternal and paternal grandparents of the deceased and their descendants, i.e. uncles and aunts, cousins and further descendants.

If there is no one left in the 3rd parentela, the inheritance passes to the 4th parentela within the framework of the legal succession.

4th Parentela

This includes the great-grandparent couples of the deceased, but not their descendants.

Examples

Example: The deceased had a child and a sister. The parents of the deceased are still alive.

Solution: The child inherits (1st parentela). The parents and their daughter (2nd parentela) are excluded.

Example: The deceased had no children, but a sister. The parents of the deceased have also already passed away.

Solution: There are no children and no descendants of the children (1st parentela). Therefore, the parents and the descendants of the parents (2nd parentela) are eligible. The parents have already passed away. However, the parents have a daughter who is still alive (the sister of the deceased). The sister inherits.

Principle of “Old before Young”

Within a parentela, the children (1st parentela), the parents (2nd parentela), the grandparents (3rd parentela) of the deceased inherit first within the framework of the legal succession.

The descendants of these persons are only considered if their parents have already passed away. The (great-)grandchildren therefore only inherit if their parents would have been considered, but have already passed away. The siblings, nieces and nephews of the deceased therefore only inherit if their parents would have been considered, but have already passed away.

Example: The deceased had no children, but a sister and a nephew (the son of the sister). The parents of the deceased have also already passed away.

Solution: There are no children and no descendants of the children (1st parentela). Therefore, the parents and the descendants of the parents (2nd parentela) are eligible. The parents have already passed away. However, the parents have a daughter who is still alive (the sister of the deceased). The sister inherits. Her son (the nephew of the deceased) inherits nothing, as his mother is still alive.

Multiple Descendants

In the case of several descendants, the inheritance is divided among them per capita.

Example: The deceased has three children.

Solution: Each child receives an equal share of the inheritance.

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Legal Right of Inheritance of Spouses

The spouse of the deceased also has a legal right of inheritance. The amount of the inheritance share depends on which relatives the spouse inherits alongside.

• In addition to the children and descendants of these children, the spouse inherits one third.
• In addition to the parents of the deceased, the spouse inherits two thirds.
• In all other cases, the spouse or the registered partner inherits the entire estate.

The spouse therefore reduces the inheritance claim of the 1st parentela by one third and the inheritance claim of the parents by two thirds. The descendants of the 2nd parentela as well as the entire 3rd and 4th parentela, on the other hand, receive nothing if a spouse is present.

Attention: This regulation can put the spouse in a very difficult situation if the children insist on payment of their two-thirds share. Spouses should therefore always draw up a will and, ideally, agree with their children and their parents on a waiver of compulsory portion. This ensures that the other spouse gets everything first and the children are only considered after the death of both spouses.

Note: These provisions also apply to registered partnerships.

Life Partners

Within the framework of the legal succession, life partners only inherit if no other legal heir is considered. He therefore only comes before the legatees and the federal government. By the way, a life partner in the inheritance law sense is only someone who has lived with the testator in a common household for at least the last three years before his death.

Attention: This legal regulation usually does not correspond to the will of the deceased, especially in the case of long-lasting cohabitations. Life partners should therefore always draw up a will and, ideally, agree with the legal heirs on a comprehensive regulation of the further inheritance. If this does not happen, life partners will receive nothing as soon as any distant relative is present.

No Legal Heirs

The legal succession only comes into effect if there is no valid will, if it does not cover the entire assets or if heirs do not accept the inheritance anyway.

If in these cases there is also not a single legal heir and no life partner, then the estate falls to the state.

Disadvantages of the Legal Succession

The legal succession has in many cases clear disadvantages compared to a valid will.

One disadvantage is the randomness. Even if there is only one child, this child can die at the same time as the parents, e.g. in a car accident. Then the inheritance goes to distant relatives or, in the worst case, to the state, although the testator would have preferred to regulate this case differently and considered close friends.

Another disadvantage is that the legal succession only transfers shares of assets. This leads in many cases to legal disputes over the correct valuation of individual assets. Often, as a result, the assets have to be broken up and apartments and valuables sold because no heir is able to pay out the others. In this way, cherished memories and family seats are lost.

A will is therefore always the better way to regulate one’s own estate.

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