Forced heirship is a minimum share reserved in favour of children and the spouse. One child cannot take everything while the other takes nothing. A person’s estate is not entirely free to be distributed among relatives. A minimum share, reserved in favour of children and the spouse, must go to them. In other words, one cannot give everything to one child and nothing to another.
When does the right to forced heirship lapse?
The right to forced heirship is not subject to limitation nor is it lost, and consequently there is no deadline. The compulsory heir may claim it whenever they wish, but only over the actual estate.
Claiming forced heirship: who is entitled?
Compulsory heirs are deemed to be the spouse, the children, the grandchildren and the parents. Compulsory heirs are entitled to a share of the estate even if they have been excluded by the decedent’s will. In such cases, forced heirship is provided for by the provisions on “compulsory succession” of inheritance law. These provisions apply only when the will excludes the compulsory heirs or leaves them less property than forced heirship requires.
As you will appreciate, the spouse of the decedent becomes a compulsory heir in all cases of compulsory succession. By contrast, the parents become compulsory heirs only if the decedent had no children or grandchildren.
Thus, if for example the father owned a property and gave it only to one child (with no surviving spouse), the other child automatically receives 25% of it.
How the value of the share-holder’s forced heirship is assessed:
- For the actual estate, the value of all the property at the time of death is assessed, deducting funeral expenses and debts.
- For the notional estate, the value the property had at the time it was created is added, plus benefits granted to third parties, donations and parental gifts.
While, as a rule, every person is entitled to dispose of their property as they wish after death (by will), the surviving spouse, the children and the parents (where there are no children) cannot be excluded from it. These persons are called statutory share-holders.
Forced heirship is the minimum share of the estate which by law cannot be denied to these persons and in practice amounts to half of the decedent’s estate. This share is equal to half of what each person would have received had there been no will at all, that is, in intestate succession. The exact amount of the forced heirship is determined by legal calculation, taking into account various factors, such as the value of the estate and what the testator had given before death and to whom.
The above persons have the right to claim their forced heirship by lawsuit if the testator left them less than they are entitled to or if they were left nothing without lawful cause. If there was lawful cause, this constitutes disinheritance.
For the calculation of the forced heirship, pursuant to Articles 1831 and 1838 of the Civil Code (AK), the condition and value of the estate at the time of the decedent’s death is taken into account, after deducting debts etc. or adding the elements referred to in those articles.
Therefore, the share-holder, in the inheritance lawsuit, must invoke the death of the decedent, their inheritance right (citing the family relationship that connects them with the decedent and on which their call to the estate as share-holder is founded), the status of the disputed items as inheritance objects, their possession and retention by the defendant as heir of the testator, the drawing up of a will in lawful form by which their forced heirship was infringed, and must specify the percentage of the estate to which their forced heirship amounts and, for its calculation, the assets — and their valuation in money — that constitute the estate, namely the type, extent and value of each, as well as their status as inheritance assets.
- See also article Contesting a Will
- See also article Death of a Bank Depositor
- See also article Certificate of Inheritance
FREQUENTLY ASKED QUESTIONS ABOUT FORCED HEIRSHIP
1. What am I entitled to as a statutory share-holder who was omitted from a will?
As a compulsory heir (child, grandchild, spouse, or parent where there are no descendants) you are entitled to a minimum share equal to half of what you would have received in intestate succession. For example, if the decedent had two children and left the entire estate to one, the other is entitled to 25% (half of 50%).
This right is enshrined in Articles 1825 et seq. of the Civil Code (AK) and cannot be excluded by will, save by lawful disinheritance on strictly defined grounds. If your share is infringed, you may bring an action for revocation of an unconscionable donation or an inheritance lawsuit against the beneficiaries.
2. How is the amount of forced heirship calculated in practice?
The calculation is made on the basis of Articles 1831 and 1838 of the Civil Code (AK). The condition and value of the estate at the time of death is taken into account, debts and funeral expenses are deducted, and donations and parental gifts made by the testator during their lifetime to third parties or co-heirs are notionally added.
This prevents circumvention: the testator cannot transfer the estate during their lifetime to one child in order to nullify the share of another. The exact calculation is complex and requires valuation of real property, bank deposits, shares and any other asset, which is why it is normally drawn up by a lawyer in cooperation with a valuer.
3. Is the right to claim forced heirship subject to limitation?
The right to forced heirship itself, as an inheritance right, is not subject to limitation. However, the claims arising from it are. The action for revocation of an unconscionable donation (Article 1835 of the Civil Code) must be brought within two years of the testator’s death — a strict and exclusive deadline.
The inheritance lawsuit against an heir holding inheritance items is subject to a twenty-year limitation period. Owing to the differing deadlines and the short revocation period, prompt contact with a lawyer following the testator’s death is critical — otherwise you risk losing a substantial part of the claim.
4. What chances do I have of winning a forced heirship lawsuit?
Where the family relationship and the infringement of the minimum share are proved, the chances of success are generally high, as the right is strictly protected by law. Judicial dismissal usually arises only where lawful disinheritance is proved (Articles 1839-1845 of the Civil Code) or where the share-holder has already received sufficient benefits during the testator’s lifetime.
The dispute often centres on the calculation: on the value of real property, on the characterisation of lifetime benefits as donations or as compensatory transfers, and on the existence of hidden assets. That is where the final outcome is decided, which is why preparation of the lawsuit requires a detailed inheritance file.
5. What documents do I need to bring a forced heirship lawsuit?
Required documents include the death certificate, certificate of next of kin, certificate that no other will has been published, copy of the published will from the Court of First Instance, as well as the title deeds for the decedent’s real property (deeds, land registry certificates, E9 tax form).
In addition, evidence is needed for every donation or parental gift the testator made during their lifetime over the past decade (deeds of transfer, bank transfer receipts), valuations, as well as evidence of any debts of the estate. The lawyer can search for information at the National Land Registry, the tax office (DOY) and banks by means of a prosecutorial order or in their capacity as heir.
6. What is the lawyer’s role in a forced heirship case?
The lawyer first checks whether the forced heirship has indeed been infringed, by calculating the actual and notional estate. They then select the appropriate legal remedy — action for revocation of an unconscionable donation, inheritance lawsuit, or declaratory action for the inheritance right — and ensures that the deadlines are observed, particularly the two-year period for revocation.
At the same time, they explore the possibility of an out-of-court settlement with the co-heirs, which is often preferable to multi-year litigation between relatives. If recourse to the courts proves necessary, they represent the share-holder before the competent Court of First Instance and oversee the enforcement of the judgment for the delivery of the inheritance items.