Can an unborn or conceived child be designated as heir in a will?
An unborn or conceived child (nasciturus) may perfectly well be designated as heir in a will and, if born alive, will acquire the inheritance. Following the death of the testator, and provided that the unborn or conceived child is born alive, the unborn or conceived child inherits — that is, succeeds to both the rights and the obligations of the inheritance. Consequently, the unborn or conceived child may inherit both under a will and on intestacy (without a will), in accordance with the following provisions:
An heir may be a person who, at the time of devolution of the inheritance, is alive or has at least been conceived (Article 1711 of the Civil Code (AK)). The time of devolution is the time of death of the decedent. As regards the rights devolving upon it, the conceived child is deemed to be born, provided it is born alive (Article 36 AK). As the provision states, an heir may be a person who, at the time of devolution, is alive or has at least been conceived. A child born following post-mortem artificial insemination may also become an heir. The time of devolution is the time of death of the decedent. Consequently, the conceived child has full capacity to inherit, on condition that it is born alive. If the conceived child is born alive, it is deemed to have already been born at the time of the decedent’s death. Therefore, at that same time it had the capacity to inherit and accordingly acquires the right of inheritance.
What happens if the unborn child is not born alive?
If, however, the conceived child is not born alive, the consequence is that the conceived child never had the capacity to inherit and never became an heir. Accordingly, the inheritance devolves upon those persons who would have been called immediately upon devolution had there been no conceived child. The latter, under the above conditions, succeeds not only to the rights but also to the obligations of the inheritance. This, after all, is the meaning of universal succession. A separate matter is that, by analogous application of Article 1912 AK, the conceived child always inherits with the benefit of inventory (see judgment Rhodes Single-Member Court of First Instance 259/12).
- See also article Certificate of Inheritance
- See also article Renunciation of Inheritance by a Minor
- See also article Contesting a Will
- See also article Death of a Bank Depositor
- See also article Forced Heirship
- See also article Classes of Intestate Succession
- See also article Kinship
- See also article Power of Attorney Abroad
FREQUENTLY ASKED QUESTIONS ON INHERITANCE BY AN UNBORN – CONCEIVED CHILD
1. Can my conceived but unborn child inherit lawfully?
Yes, the law recognises full capacity of the conceived child to inherit, subject to the basic condition that it is born alive. Pursuant to Articles 36 and 1711 of the Civil Code (AK), the conceived child is deemed to be born as regards the rights devolving upon it, provided it is subsequently born alive. This applies both where there is a will designating it as heir and in intestate succession, namely where the father dies before the birth. It also covers the case of a child born following post-mortem artificial insemination. The time of devolution of the inheritance is the time of death of the decedent, and the right is established from that moment.
2. What happens if the child is not born alive?
In that case, the conceived child is deemed never to have had the capacity to inherit and never to have become an heir. The inheritance then devolves upon those who would have been called immediately had there been no conceived child, that is, upon the next-in-line relatives or any substitute heirs designated in the will. This is a retroactive arrangement that resolves the temporary state of suspension in which the inheritance lies during gestation. For this reason, until the birth, the management of the estate is conducted with particular care, so that neither third-party rights nor those of the conceived child itself are prejudiced.
3. Is the unborn child liable for the debts of the inheritance?
In hereditary succession, the principle of universal succession applies, meaning that the heir succeeds not only to the rights but also to the obligations of the inheritance. However, the law affords particular protection to the conceived child: by analogous application of Article 1912 AK, the conceived child always inherits with the benefit of inventory, as case-law has held (Rhodes Single-Member Court of First Instance 259/12). This means that liability for any debts is limited to the value of the hereditary estate and does not extend to the personal property of the child after its birth. This is a critical safeguard, particularly where the inheritance includes debts or disputed assets.
4. How long does the administration last until the birth?
The inheritance is in a state of temporary suspension from the death of the testator until the birth of the child, a period that may extend up to nine months. During this time, the estate is not distributed to the remaining heirs, and a guardian or temporary administrator is usually appointed to safeguard its assets. Following the birth and the issuance of the birth certificate, the formal procedures of acceptance of inheritance, drawing up of the inventory, registration with the national land registry (Kthimatologio) and, where applicable, issuance of a certificate of inheritance, commence. The overall procedure, in the absence of judicial disputes, is generally completed within six to twelve months from the birth.
5. What documents are required to secure the rights?
The required documents are: the death certificate of the decedent, the birth certificate of the child, a certificate of next of kin, a certificate of non-renunciation and of non-publication of any other will, as well as the published will, where applicable. In cases of post-mortem artificial insemination, the relevant judicial authorisation and medical documents are required. To protect the estate during gestation, an application must be filed with the Single-Member Court of First Instance for the appointment of a temporary administrator. It is also recommended that an inventory report of the hereditary estate be drawn up, so as to record accurately what is being inherited and to activate the benefit of inventory.
6. What is the role of the lawyer in such cases?
The Law Firm ZIAMPARAS D. & ASSOCIATES undertakes the protection of the inheritance rights of the conceived child at every stage. It examines the will and its validity, files an application for the appointment of a temporary administrator of the inheritance, draws up the inventory report to activate the benefit of inventory, and represents the mother or the guardians in every procedure. Following the birth, it handles the acceptance of inheritance, the registration of real property and the issuance of the certificate of inheritance. In cases of dispute by other relatives, it brings an action for recovery of inheritance (petitio hereditatis) or contests challenges to the will. The firm’s experience in the law of succession ensures that no right of the child is lost due to a procedural omission or expired deadline.