What are the main rules of succession, and what are the scope and effect of any rules of forced heirship?
Private Client (2nd edition)
There is no forced heirship regime. However, if individuals do not leave a will, their estate will be distributed in accordance with the following order of inheritance (Israeli Inheritance Law, 1965):
- If a deceased did not leave a will, their assets will be divided between their spouse at the time of death, children and grandchildren, parents and their children, grandparents and their children.
- If the deceased left behind their children, grandchildren or parents, their spouse must inherit half of the estate, in addition to chattels that are usually attributed to the household, including the deceased's car, if they had one.
- If the deceased left behind their siblings, siblings’ children or grandparents, the spouse must inherit two thirds of the estate, in addition to chattels that are usually attributed to the household, including the deceased's car, if they had one.
- If the spouse was married to the deceased for three years or more and lived with the deceased at the time of death in an apartment that forms part of the estate, the spouse will inherit the deceased's rights in the apartment.
- If the deceased left no other relatives, the spouse must inherit the whole estate.
The deceased's children will precede their parents in the order of inheritance and their parents will precede their grandparents.
Testate succession occurs pursuant to the terms of the Will of a deceased person.
Intestate succession is governed by the rules contained in the Succession Act 1965, and occurs where a deceased person either has not made a Will, or has not fully disposed of his free estate by the terms of his Will. The Succession Act 1965 sets out the division of a deceased’s estate where they die intestate.
There is a limited form of forced heirship under Irish law. The Succession Act 1965 provides for an absolute right of a spouse (same-sex also included since 2015) or civil partner of a deceased person to a fixed share in the deceased’s estate. This right is often referred to as the ‘legal right share’ and cannot be defeated by the provisions of the deceased’s Will. The percentage share entitlement of the spouse / civil partner will depend on whether the deceased dies with or without children.
The legal right share may be renounced in writing by a spouse after marriage or a civil partner after the civil partnership, but must be renounced during the lifetime of the testator.
A child of a deceased person has no specific entitlement to the deceased’s estate and merely has an entitlement to apply to court for relief, which may be granted if the court is of opinion that the deceased failed in his / her moral duty to make proper provision for the child in accordance with his / her means, whether by Will or otherwise.
Belgian succession law is based on blood relationship and partnership. If no last will is made, intestacy rules apply. According to Belgian law there are four categories of heirs:
- parents and brothers and sisters;
- ascendants, including the parents if no brothers or sisters;
- collaterals, other than brothers and sisters, and their descendants.
Heirs from a closer category exclude the heirs from further categories. Within a category, the persons closest to the deceased exclude the others. In case of a predeceased heir, his descendants will jointly take up his position in the inheritance of the deceased.
If the deceased leaves both descendants and a surviving spouse, the latter inherits the usufruct on the entire estate whilst the descendants inherit the bare ownership. Since 1 September 2018, i.e. the date the new Belgian succession law entered into force, if there are no descendants but the deceased leaves one or more ascendants, brothers, sisters or descendants of brothers or sisters, then the surviving spouse inherits full ownership of the deceased’s part in any undivided property that was exclusively held by the couple (unless agreed otherwise in a marital contract) and can be entitled to a greater share than the usufruct of any other part of the deceased’s estate depending on the matrimonial regime that applied to the couple. If the deceased only leaves collaterals (other than brothers or sisters and their descendants) or if there are no heirs, the surviving spouse receives the full ownership of the entire estate.
A surviving legally cohabiting partner only inherits the usufruct on the family dwelling and its furniture, so a much more limited right than a surviving spouse.
Since 1 September 2018, the in-principle prohibition to make inheritance agreements on a future succession has been attenuated. Now, but still to a limited extent, it is possible to make such inheritance agreements.
Children and the surviving spouse are legally entitled to a minimum share of the estate (‘the reserved portion’). If these forced heirs do not receive their reserved portion, they can make a claim for reduction.
The reserved portion is calculated as a fraction of the so-called ‘fictitious mass’, being the sum of all net assets of the deceased on the day of his death and all gifts made by him during his lifetime. Since 1 September 2018, in case of a successful claim for reduction, forced heirs receive in principle a compensation in value and can no longer claim to receive (part of) the assets themselves, although a donee can offer to pay with (part of) the assets.
Since 1 September 2018, the reserved portion of the children no longer varies according to their number. Now, the total reserved portion of all children is half of the fictitious mass. The other half is the ‘disposable share’ of which the testator can dispose freely.
The surviving spouse is entitled to the usufruct on half of the fictitious mass, but as an absolute minimum has right to the usufruct on the family dwelling and its furniture.
Since 1 September 2018, ascendants are no longer forced heirs that can claim a part of the estate. Instead, and only if they are needy at the time of death of the deceased, they can now claim a monthly annuity or an equivalent lump sum that cannot exceed 1/4 of the fictitious mass per ascending bloodline.
Legal cohabitants can disinherit each other completely; the surviving legal cohabitant is not a forced heir.
Generally speaking, an individual is free to choose the beneficiaries of his or her estate by executing a Will (or Will substitute) detailing his or her wishes. However, most separate property states have elective share statutes that prohibit the disinheritance of a spouse, instead requiring that some portion of a person’s estate (usually about one-third) pass to his or her surviving spouse. Louisiana is the only state with forced heirship, requiring that some portion of a person’s estate is left to his or her children if such children are under age 24 or permanently incapable of taking care of their persons. (In Louisiana, the forced portion is typically one-fourth of the estate if there is only one forced heir, and one-half of the estate if there are two or more forced heirs. However, the fraction may be smaller in the situation where the testator has five or more children and only one or two of them are under age 24, or otherwise forced heirs, as well as in certain instances where disabled grandchildren are forced heirs.) If an individual dies without a Will, the distribution of his or her estate will be subject to the intestacy laws of the state of his or her residence. Each state has its own set of intestacy laws, but the surviving spouse and children are usually favoured.
If there is a valid will, the assets pass according to the will, subject to the rules regarding the statutory portion of the estate. Cyprus law restricts, under certain circumstances, a person’s right to dispose of his or her property by will. The part that can validly be disposed of by will is called the ‘disposable portion’ of the estate and the part that cannot be disposed of by will is called the ‘statutory portion’. The statutory portion is distributed according to the rules of intestacy.
The actual proportion of the net estate taken up by the statutory portion varies according to which relatives survive the deceased person.
- If the deceased is survived by a living child or a descendant of a child, the statutory portion amounts to three-quarters of the net value of the estate;
- If the deceased is survived by a spouse or a parent, but not by any children or their descendants, the statutory portion is half the value of the net estate;
- If the individual leaves no surviving spouse, parent, child, or descendant of a child, the statutory portion is reduced to nil and the entire net estate may be disposed of by will.
The rules regarding the statutory portion are of limited relevance, since it is a straightforward matter to regain complete testamentary freedom with proper planning.
The rules of intestacy apply if no valid will exists, and also to any part of the estate not disposed of by will. For the purposes of applying the rules of intestacy the persons entitled to succeed to the estate of a deceased person are divided into four classes, namely:
- First class: the children of the deceased living at the time of his or her death and the descendants of any of the deceased’s children who died in his or her lifetime who are living at the time of the death of the deceased. The term “children” is not restricted to legitimate children, but extends to adopted children and children born out of wedlock.
- Second class: the father, mother, brothers, and sisters of the deceased, and the living children of siblings of the deceased who died in his or her lifetime. Between siblings, half-brothers or half-sisters are entitled to half the share of a full brother or sister.
- Third class: comprises the ancestors of the deceased nearest in degree of kindred, living at the time of his or her death.
- Fourth class: the nearest relatives of the deceased living at the time of his or her death, up to the sixth degree of kindred (more remote relatives are excluded).
Distribution takes place after the deduction of the share of the surviving spouse (see below). The heirs of each class generally succeed equally, but in the first and second classes the succession is per stirpes, whereas in the third and fourth classes it is all per capita. The persons of one class exclude persons of a subsequent class. The estate of an individual who dies leaving no spouse and no relative within the sixth degree of kindred will become the property of the Republic of Cyprus.
The share of the net value of the estate after the debts and liabilities have been discharged allocated to the surviving spouse varies according to the number and nature of other relatives surviving the deceased, thus:
- If the deceased has left a child or descendant of a child, the surviving spouse’s share is equal to the share of each child.
- If the deceased has left no child or descendant thereof but an ancestor or descendant of an ancestor within the third degree of kindred to the deceased, the surviving spouse is entitled to one-half of the net estate.
- If the deceased is survived by an ancestor or descendant of the fourth degree of kindred, but no closer relative, the surviving spouse’s share is three-quarters of the net estate.
- If no relative within the fourth degree of kindred or closer survives the deceased, the surviving spouse is entitled to the entire net estate.
In the absence of a will the entire estate goes to the heirs. Children (or grandchildren if children are also deceased) inherit 2/3, a spouse (or civil partner) inherits 1/3.
If there are no descendants the spouse (or civil partner) inherits 2/3 and the parents inherit 1/3. If there are no parents but parents’ children then these persons inherit 1/3.
If there are no other relatives the full estate of the deceased is transferred to the state.
Children and the spouse (or civil partner) are entitled to a reserved portion which is half of the portion they would get in the case there is no will (intestacy). The reserved portion is due with the death of the deceased and basically paid in cash.
The rules of succession are governed by the Succession Act. The distribution of a person’s estate upon death is carried out in accordance with the rules of the law or in accordance with the decedent’s last will subject to the rules of forced heirship.
In the case of intestacy the law divides the successors into four levels:
- ascendants at the first degree;
- ascendants at the second and higher degree, as well as collateral relatives at the first degree and their descendants up to the sixth degree;
- collateral relatives at third to sixth degree.
Each preceding level excludes the next. The surviving spouse is not included into any of the levels, but inherits along with the first three levels. If there are no successors from the first three levels the surviving spouse inherits the whole estate and excludes the fourth level.
In the case of a will, the forced heirs include the surviving spouse and the lineal descendants of the deceased or, in the absence of such descendants, the lineal ascendants of the deceased. They are entitled to a forced portion of the estate of the deceased. A person is, therefore, not allowed to make a disposition upon death which adversely affects the forced portions. Forced portions depend on the capacity and number of heirs and are determined by the law.
The surviving spouse and children and their descendants are entitled to equal portions of:
- One third each, where there is only one child;
- One quarter each, where there are two children;
- One sixth each, where there are three or more children.
Where the deceased is not survived by a spouse but is survived by children and their descendants, the descendants are entitled to the following portions:
- Half of the estate, where there is only one child;
- Two thirds of the estate, where there are two or more children.
Where the deceased is not survived by children or their descendants but is survived by a spouse, the spouse is entitled to:
- Half of the estate, where the spouse inherits alone;
- One third of the estate, where the spouse inherits alongside a surviving parent(s).
The reserved share of surviving parents is one third of the estate.
Under the CCC succession is governed by the law of the country where the decedent was domiciled at the time of his death. This law governs:
- The determination of the decedent's heirs.
- Any succession rights arising by reason of death.
- The validity of testamentary dispositions.
Argentina has a forced heirship (public order) regime. The forced heirship portion refers to a portion of the estate that is reserved for certain heirs by law (that is, the forced heirs). This allows for descendants, ascendants and the surviving spouse to have a reserved portion in the deceased estate which cannot be deprived either by will or by any free inter vivos act (gifts) (Section 2444 CCC).
Under the CCC the reserved/forced portions are as follows:
- Descendants: the forced portion is two-thirds.
- Ascendants: the forced portion is one-half.
- The surviving spouse: the forced portion is one-half.
These portions are calculated taking into account the sum of the liquid value of the estate at the time of the decedent's death and the gifts provided for each of the forced heirs at the time the gift was made.
The CCC introduces the concept of improvement. This allows the decedent to reduce the reserved portion in order to exclusively improve it for disabled heirs, whether they are descendants or ascendants (first part of Section 2448).
A forced heir can be deprived of his legitimate portion if the decedent invokes in his will one of the statutory causes for disinheritance established in the Civil and Commercial Code (for example, the decedent invokes in his will that he was the victim of violence by his son). The onus probandi of the invoked disinheritance cause is in charge of the other heirs.
As a general rule, individuals are free to dispose of their estates as they think fit during their lifetime. However, the freedom of disposition may be subject to certain restrictions depending on the matrimonial property regime that the donor adopted with his or her spouse as well as on mandatory rules which cannot be derogated from by voluntary act such as forced heirship rules.
Under Monaco law, the freedom of disposition over one’s estate on death is subject to statutory forced heirship rules. Forced heirship rules compel a particular distribution of a deceased’s estate which cannot be derogated from by Will.
An individual’s assets on death consist of the reserved portion and the disposable portion. The reserved portion limits the testator’s right to dispose freely of his or her estate by Will. It is determined by law.
The reserved portion must go to the protected or forced heirs, regardless of the provisions of the Will. Children are legally entitled to inherit a reserved portion of their parents’ estates on death. In the absence of children, a certain portion of the deceased’s estate is reserved to his or her ascendants in each paternal and maternal line. No other relatives are reserved heirs. In particular, the surviving spouse is not a reserved heir.
Whenever the value of the estate is inadequate to meet the reserved portion, the disappointed heirs can make a clawback claim against the value of any gifts made by the deceased. Lifetime gifts as well as gifts made in trust may be subject to clawback after the death of the donor.
The reserved portion in the presence of one child is half of the estate and the disposable part is therefore also half. If the deceased leaves two children, the reserved portion is two-thirds of the estate and the disposable part is the remaining one-third. If there are three or more children, the reserved portion is three-quarters and the disposable part is only one-quarter. If a child predeceases the deceased, leaving descendants of his or her own, his or her descendants represent the deceased child and are entitled to the share that the deceased child would have taken had he or she survived.
If there are no children but the deceased is survived by ascendants, they are the forced heirs. If there are ascendants alive in both the paternal and maternal lines, the reserved portion is half of the estate and the disposable portion is also half. If there are ascendants only in one line, the reserved portion is one-quarter and the disposable portion is three-quarters. Other remoter ascendants are entitled to a reserved portion only if the deceased leaves no siblings or their issue.
Italian succession law provides for forced heirship rules. The reserved quota of the estate, which is reserved to forced heirs, depends on the composition of the family of the deceased upon death. For instance, if the spouse and three children are the forced heirs, 50 per cent of the estate of the deceased is the reserved quota for the children, to be divided in equal shares. For the purposes of calculating the reserved quota, the value of the estate of the deceased is equal to the value of all the assets owned at the time of death, net of any debts, plus the value of all assets that were gifted or settled into trusts by the deceased during his of her life.
Bermuda allows individuals freedom of testamentary disposition; there are no forced heirship laws.
12.1 To the extent that English law governs succession to an adult individual's estate, he is free to leave that estate to whomsoever he wishes by making a valid Will, subject only to a claim under the regime described in §12.3.
12.2 If an individual dies without a valid Will disposing of his whole estate, then to the extent that English succession rules apply and the property does not pass to a surviving beneficial joint tenant (§16.2), the intestacy rules (§16.2) will generally govern succession to his estate (or to the part of this estate not disposed of by a valid Will).
12.3 Certain categories of person (including a spouse, civil partner, former spouse, former civil partner, unmarried cohabitant or child of the deceased, or anyone else who was being maintained by the deceased before the death) may be able to bring a claim against the personal representatives (§17.1) of an individual who died domiciled (§1.9) in England and Wales if reasonable financial provision is not made for that person under the deceased's Will or under the intestacy rules (§16.2) or otherwise as a result of his death. Such a claim may also be brought in relation to property which the deceased and another person owned as beneficial joint tenants (§16.2). It should be noted that no such claim may be brought under English law against the personal representatives of an individual who died domiciled outside England and Wales.
Colombian rules on forced heirship are mandatory and apply to the estates of all individuals (nationals and foreigners) who die with their last residence in Colombia. Colombian resident heirs and foreign heirs have the same rights and, thus, are entitled to equal treatment in Colombian probate proceedings. The Civil Code forces the testator to assign certain compulsory portions, applicable to half of her/his estate even against her/his will.
The following are the compulsory portions: (i) maintenance provided by law; (ii) the marital portion; (iii) the legitimate.
- Maintenance provided by law:
A compulsory portion for the subsistence of the beneficiary in a way that corresponds to her/his standard of living. Individuals entitled to maintenance include the spouse and, descendants per stirpes, ancestors or, siblings. The amount of maintenance will be assessed by a judge.
- Marital portion:
The marital portion is the portion of the estate that the law assigns to the surviving spouse or permanent partner lacking the necessary means for a subsistence. Taking into account the existence of any legitimate descendants, the widower or widow shall be counted among the children, and shall receive as the marital portion a share equivalent to the legitimate portion corresponding to the legitimate descendants.
- Legitimate portion:
The legitimate is that part of the estate of a deceased that the law assigns to the legal heirs. The following are legal heirs: Children personally, or represented by their descendants; and ancestors. The legitimate is obtained by dividing half of the inheritance between all legitimate descendants and the widow or widower. The legal heirs converge to the succession and are excluded and represented according to the order and rules of the intestate succession.
Should there be any legitimate heirs:
The testator may, at her/his discretion, favour the descendant or descendants that she/he prefers assigning part of the estate in the proportion desired.
Should there be no legitimate heirs:
If there are no heirs entitled to inherit this part of the inheritance, it will increase the freely disposable portion as explained below.
- The Freely disposable portion:
A testator may under Colombia law, dispose of a certain part of her/his wealth, up to half oh his estate. Should there be no descendants or beneficiaries, directly or by representation, entitled to inherit, the freely disposable portion will represent the entire estate.
The succession to movable Cayman Islands property or chattels will be determined by the laws of the jurisdiction in which the deceased domiciled.
The succession rules of the Cayman Islands dictate that in relation to immovable property, such as land, succession will be determined by Cayman Islands domestic law irrespective of where its owner was domiciled upon their death.
There are no forced heirship rules in the Cayman Islands. There exists in the Cayman Islands full freedom of testamentary disposition.
A Cayman Islands grant of representation is required to be granted by the Cayman Court of the Cayman Islands before any Cayman Islands property is dealt with following the death of a person. If the deceased dies with a will, they have died testate and a grant of probate will be required from the Cayman Court. If the deceased dies with no will, they will have died intestate and a grant of letters of administration will be required from the Cayman Court.
Finally, where a grant of probate or letters of administration has already been obtained from a foreign court in respect of the deceased's estate, it may be possible for this foreign grant to be resealed by the Cayman Court. However, such grants must be in a similar form to those issued by the Cayman Court.
The main rules of succession are (1.) “Vonselbsterwerb” which means, that the assets of the deceased’s pass to the heir(s) of the deceased automatically upon his death, and (2.) “Gesamtrechtsnachfolge” (universal succession) which means, that the estate of the deceased (except for shares in a partnership) passes to his heirs “as a whole”.
In case of intestacy, the deceased’s estate passes to his spouse (or civil partner) and his relatives. The share of the spouse depends on the applicable matrimonial regime (see question 13). The shares of the relatives are determined as follows: Children and – as a substitute – their descendants are heirs of the first degree, parents and – as a substitute – their descendants are heirs of the second degree, grandparents and – as a substitute – their descendants are heirs of the third degree and so on. Heirs of a lower degree exclude heirs of a higher degree. Heirs of the same degree inherit in equal shares (succession per stirpes).
There is a forced heirship regime under which the descendants, the spouse (or civil partner) and the parents of the deceased have the right to a compulsory portion in cash. The compulsory share is 50% of the value of the individual’s share in case of intestacy.
Singapore law imposes few restrictions on testamentary freedom save for in respect of Muslims domiciled in Singapore, whose testamentary disposition is subject to the Administration of Muslim Law Act read with principles of the school of Muslim law professed by the testator.
A non-Muslim is generally free to dispose of his / her assets and properties by making a valid Will, subject to a claim under the Inheritance (Family Provision) Act. In the absence of a valid Will, the following rules or priorities of succession prescribed in the Intestate Succession Act will apply –
- If the intestate dies leaving a spouse (but without surviving children or parents), the spouse will be entitled to the whole estate.
- If the intestate dies leaving a spouse and children, the spouse will be entitled to half of the estate, and the children the other half of the estate to be divided equally.
- If the intestate dies leaving a spouse and parents (but without surviving children), the spouse will be entitled to half, and the parent(s) the other half, of the estate.
- If the intestate dies without surviving descendants, subject to the rights of the surviving spouse, the parents will be entitled to the estate in equal shares.
- If there are no surviving spouse, descendants or parents, the estate will be distributed equally among the intestate's brothers and sisters (or their children if they are deceased).
- If there are no surviving spouse, descendants, parents, brothers and sisters or their children, grandparents of the intestate will take the estate in equal shares.
- If there are no surviving spouse, descendants, parents, brothers and sisters or their children or grandparents, the uncles and aunts of the intestate will take the estate in equal shares.
- In default of the above, the estate will go to the Singapore Government.
Under the Inheritance (Family Provision) Act, a spouse or child of a non-Muslim testator may apply to the court for provision for maintenance if reasonable provision for the dependant is not made under the Will or the intestate rules.
The Portuguese civil law determines the reserve of a portion of 2/3 of the deceased’s inheritance for his/her spouse and children. Thus, only 1/3 of his/her estate may be freely disposed of.
Under the French forced heirship rules, a certain portion of estate cannot be freely disposed of by lifetime gift or Will other than to descendants or under certain circumstances, to the surviving spouse.
The remaining portion of the estate that can be freely disposed of depends on the number of children the deceased had:
- one child: half
- two children: one-third
- three children or more: one quarter.
The law is based on the principle of family succession (§§ 727ff. Civil Code) and follows the system of succession per stirpes. Consequently, the intestate heirs are the spouse and closest relatives in the following order:
(1) first line: the decedent’s descendants (whether legitimate or illegitimate or adul-terine children);
(2) second line: the decedent’s parents and their descendants (the decedent’s brothers and sisters);
(3) third line: the decedent’s grandparents and their descendants;
(4) fourth line: the decedent’s great-grandparents, but not their descendants.
The surviving spouse is entitled to a part of the inheritance together with these lines. If the first line exists, the surviving spouse inherits one-half of the entire estate. Where the second line or the grandparents but no children of the decedent exist, the surviving spouse’s portion is two-thirds, in any other case it is the entire estate. The entitled line inherits only the remaining part of the estate.
As a result of the principle of family succession, the testator/trix is obliged to leave the forced heirs a compulsory share (§§ 762ff. Civil Code). The forced heirs are the testator/trix’s descendants and spouse/registered partner, each in the amount of one-half of their statutory share. If the testator/trix dies without issue, his or her ancestors in the direct line (parents, grandparents) are entitled to one-third of their statutory share. Other persons (such as brothers and sisters) are not entitled to a compulsory share. If there has never been a close family relationship, e.g. between a father and his illegitimate child, the testator/trix may order a reduction of the compulsory share to one-half (§ 773a ABGB). The spouse/registered partner is entitled to the double of the compulsory share if (i) he or she has significantly contributed to the increase of assets of the testator/trix and (ii) the testator/trix obtained the majority of assets during the marriage or registered partnership (§ 765 (2) Civil Code).
In accordance with current legislation, people in Mexico can inherit through two different forms or regimes: testamentary succession and legitimate succession.
Through testamentary succession, a capable person can freely dispose of his assets and rights and declares or fulfills duties for after his death.
The general rules for granting a testament are regulated in each of the state legislations, to the extent that in Mexico successions are governed under state jurisdiction. However, we can cite some rules contained in the Civil Code of Mexico City, which states that only those who are over 16 years of age and who are in full trial can grant a will. The formalities to grant a will in Mexico will be analyzed in subsequent questions of this document.
On the other hand, the legitimate succession occurs when the author of the inheritance does not dispose of his property by means of a testament after his death, for which the legislator interprets what his intention had been, replaced his will and presumed his intention.
Legitimate succession can be opened when the author of the inheritance has not disposed of all his property by means of a will, either because he did not test or because he only referred to some assets and not to all, or because the dispositions that he disposed cannot be fulfilled and he does not name substitutes or did not establish rules for the case that the first ones did not have effects.
Regarding the people who have the right to inherit according to the legitimate succession, each state has its own rules regarding the order and form of inheriting.
Notwithstanding the above, and as an example, we can enlist the following rules of legitimate succession in Mexico City:
- In accordance with the civil code of the city of Mexico, they have the right to inherit by legitimate succession the descendants, ascendants, collaterals up to the fourth degree, spouse or surviving concubine, and in the absence of all of them, the System for the Integral Development of the Family from Mexico City.
- As a general rule, the closest relatives exclude the most distant, except in those cases where ascendants or descendants concur, since the descendants, even being of the same degree or farther degree, exclude the ancestors, who will only be entitled to food.
- As a general rule, relatives who are in the same degree will inherit equally.
- Kinship by affinity does not give the right to inherit.
- The straight line excludes collateral. In a straight line, descendants exclude ascendants.
Finally, it is important to note that in Mexico there is no rule of forced succession, so that all people are free to dispose of their assets in the way they deem appropriate.
By law, 50% of the estate must be allocated to all Forced Heirs [children, spouse (according to the marital regime – see question 13) and parents]. This forced heirship rule also considers all donations made in life by the deceased to each of the heirs, in order to determine if this proportion was respected. If there is no will [see question 16] 100% of the estate should be divided between the Forced Heirs.
If any of the heirs dies before the deceased leaving issue alive, such issue shall take the share of the Forced Portion which his parent would otherwise have taken and if more than one in equal shares per stirpes.
If, at the moment of death, the deceased has not an existing Forced Heir, the estate should be divided according to the will, if the deceased has left one, and 100% of the estate is free to be distributed or should be addressed to parents and siblings, if any. In last case, if there is no relative nor a will the estate should be addressed to the Municipality where they are located.
In sum, if the deceased left no will, the allocation of estate will be in the following order:
- First the estate is left for the spouse and descendants;
- If there are no descendants, the goods will remain for the spouse and the parents;
- If there are no parents, the spouse gets 100% of the estate;
- If there is no spouse, the brothers will inherit;
- If there are no brothers, the nephews will inherit;
- And if there are no nephews, the uncles of the deceased will inherit; and finally
- If there is no relative (including collaterals), after a vacancy of five years, the assets should be transferred to the municipality.
Only in specific circumstances the deceased can disinherit one or all of the Forced Heirs.