Forced Heirship Explained: What a Will Cannot Take Away

How forced heirship works

The law splits an estate into two parts: a reserved part that must go to protected heirs, and a free part you can leave to anyone. A will can only dispose of the free part. If it goes further, protected heirs can have it reduced.

France: la réserve héréditaire

• One child: one half of the estate is reserved
• Two children: two thirds are reserved
• Three or more children: three quarters are reserved
• With no children, a surviving married spouse is protected for one quarter

Italy: la legittima

• One child, no spouse: one half is reserved
• Two or more children, no spouse: two thirds are reserved
• A spouse with one child: two thirds reserved in total, split equally
• A spouse with two or more children: three quarters reserved in total

Germany: der Pflichtteil

German law gives descendants, the spouse and — if there are no descendants — the parents a cash claim equal to half of what they would have received without a will. It is a claim against the estate rather than a share of specific assets.

A worked example

A person living in France leaves 900,000 and has two children. Two thirds — 600,000 — is reserved for the children, and 300,000 is free. If the will tries to leave 500,000 to a friend, only 300,000 can be honoured; the children keep the reserved 600,000.

Common-law countries are different

• England and Wales: a will is largely free, but family members and dependants can apply to the court for reasonable provision.
• Most of the United States: a will is largely free, but a surviving spouse usually has an elective share, and Louisiana protects some children.
• Canada (Ontario): a will is largely free, but spouses and dependants have statutory claims.

Which country’s law applies?

It depends on where you lived, where property is located and your nationality. Within most of the European Union, the default is the law of your last habitual residence, and you may usually choose the law of your nationality instead. Cross-border cases need a lawyer who knows both systems.