What are the main rules of succession, and what are the scope and effect of any rules of forced heirship?

Private Client (3rd edition)

Colombia Small Flag Colombia

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 and; (iii) the legitimate.

i. 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.

ii. 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.

iii. 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 on 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.

Italy Small Flag Italy

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.

Cyprus Small Flag Cyprus

The distribution of a person’s estate can be defined through a will, however, restrictions on the freedom of the testator to dispose of the estate are imposed by the Cyprus laws (Cap 195, Article 21). The disposable portion of the estate refers to that part of the movable and immovable property of a person which can be disposed of freely by a will, while the statutory portion refers to the portion of the estate which is distributed in accordance with Cyprus laws and in which forced heirship rules shall apply.

If a testament is concluded prior to death, the court will follow the testament of the deceased but, in any case, first degree relatives (spouse, children, parents) cannot be excluded from the inheritance. The deceased can distribute only 25% of the property to any third party in case of a surviving spouse and children and descendants of the children, or 50% in case of a surviving spouse and parents (but no child or descendant of a child).

The deceased can only distribute freely the entire estate if there is no surviving spouse, children or descendants of children, nor parents.

Hong Kong Small Flag Hong Kong

a. In Hong Kong, the essential validity of a will disposing and the intestate succession of movable property is governed by the law of the deceased’s domicile at death and, in the case of immovable property, by the law of the place where the immovable property is situated.

b. There are no forced heirship rules in Hong Kong. That said, a person may make a claim against the estate of the deceased on the ground that the disposition of the deceased’s estate effected by his Will or the law relating to intestacy is not such as to make reasonable financial provision for him or her provided that he or she meets the requirements under the Inheritance (Provision for Family and Dependants) Ordinance.

Mexico Small Flag Mexico

In accordance with current legislation, people in Mexico can inherit through two different regimes: testamentary succession and legitimate succession.

Through testamentary succession, a capable person can freely dispose of his assets and rights and declares or fulfils duties for after his death. The general rules for granting a will are regulated in each of the state legislations, to the extent that successions are governed under state jurisdiction.

On the other hand, the legitimate succession occurs when the author of the inheritance did not grant a will before his death, or the one he granted does not include all his assets or is invalid, so his assets and rights are distributed in accordance with the provisions set forth by the law.

Each state has its own rules regarding the order and form of inheriting through legitimate succession. However, and as an example, we enlist the following general rules of legitimate succession in Mexico City:

  • Only 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 can inherit through legitimate succession.
  • 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 support payments.
  • 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 everyone is free to dispose of their assets in the way they deem appropriate.

India Small Flag India

In India rules of succession depend on the religion of the deceased. Forced heirship rules are also religion specific.

Hindus, Buddhists, Jains and Sikhs enjoy testamentary freedom to bequeath their whole estate or part thereof except coparcenary property, which is ancestral property and any other property voluntarily contributed to the joint family pool. Muslims however do not enjoy testamentary freedoms as they are not permitted to bequeath more than one third of their estate (after payment of funeral expenses, debts, etc.) without the consent of specified heirs. Further, they are subject to forced heirship rules where specified heirs of a Muslim are entitled to fixed shares. Goa (a state of India) follows community property rules where the testator is free to bequeath only half of his estate. Certain heirs of the deceased are ‘forced heirs’ who cannot be deprived of the shares of the estate of the deceased unless they are expressly disinherited by law. In the case of inter-religious marriages, the succession of the property of such persons is governed by the Indian Succession Act, 1925.

Intestate succession is as per a specific hierarchy provided under the various statutory provisions applicable based on the religion of the deceased such as the Hindu Succession Act, 1956 (for Hindus, Buddhists, Jains and Sikhs), the Indian Succession Act, 1925 (for Christians and Parsis), and Special Marriage Act, 1954 (for inter-religion marriages and succession of such persons).

Liechtenstein Small Flag Liechtenstein

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/testatrix is obliged to leave the forced heirs a compulsory share (§§ 762ff. Civil Code). The forced heirs are the testator/testatrix’s descendants and spouse/registered partner, each in the amount of one-half of their statutory share. If the testator/testatrix 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/testatrix may order a reduction of the compulsory share to one-half (§ 773a ABGB) – except if it was the testator/testatrix who refused to have contact without due cause. 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/testatrix and (ii) the testator/testatrix obtained the majority of assets during the marriage or registered partnership (§ 765 (2) Civil Code).

Monaco Small Flag Monaco

Monegasque law has rules for both testate and intestate successions. Heirs can freely refuse to be part of the succession.

Monegasque law does provide for forced heirship rules for the benefit of children or ascendants in each paternal and maternal lines. The surviving spouse is not entitled to an indefeasible portion of the estate. Accordingly, individuals are not entirely free to dispose of their estate.

The available portion of the estate depends on the number of children:

• 1 child: 1/2 of the estate
• 2 children: 1/3 of the estate
• 3 children or more: 1/4 of the estate

In the event that the deceased leaves no child and only ascendants remains, the available portion of the estate depends on whether ascendants on both parental lines are alive or not:

• Both paternal and maternal ascendants are left alive: 1/2 of the estate
• Only maternal or paternal ascendants are left alive: 3/4 of the estate

In the event that Monegasque forced heirship rules were not complied with, the heirs who benefit from these rules, and only them, can file a lawsuit in order to recover what is part of their reserved portion.

Poland Small Flag Poland

Polish inheritance law is based on the principle of family succession. According to the Civil Code, the estate is inherited by the closest relatives of the testator in the following order:

  1. testator’s descendants (children) and the surviving spouse, in equal parts, however the spouse’s part must not be less than 1/4 of the whole inheritance,
  2. in the absence of descendants, the surviving spouse together with the testator’s parents - where the parts assigned to each parent equals 1/4 of the inheritance. If a parent does not survive the inheritance moment, the testator’s siblings inherit the part that would be assigned to the late parent, in equal parts,
  3. in the absence of descendants and the surviving spouse, the testator’s parents inherit the whole inheritance in equal parts,
  4. in the absence of descendants, parents, siblings and their descendants, the whole inheritance is assigned to the surviving spouse,
  5. in the absence of descendants, the surviving spouse, parents, siblings and their descendants, the whole inheritance is assigned to the testator’s grandparents, in equal parts,
  6. in the absence of the surviving spouse and the testator’s relatives, as mentioned above, the inheritance is assigned to those children of the testator’s spouse, whose both parents did not survive the inheritance moment, in equal parts,
  7. in the absence of any of the relatives mentioned above, the whole inheritance is assigned to the administrative unit of the testator’s habitual residence, which for the purpose of inheritance proceedings is deemed to be an heir.

The part of inheritance to which the surviving spouse is entitled upon joint inheritance with other relatives, as mentioned above, equals half the inheritance.

Polish inheritance law provides for forced heirship rules, meaning that persons who will become heirs according to the binding regulations (descendants, parents and the surviving spouse) are entitled to a compulsory portion of the testator’s estate, if their rights are violated by the estate distribution made by the testator. Where a person entitled to the compulsory portion is permanently unfit for work or is a minor – the compulsory portion equals 2/3 of the inheritance to which he/she would be entitled upon inheritance in accordance with the Civil Code. In other cases, the compulsory portion equals half of such inheritance.

Portugal Small Flag Portugal

Descendants and spouses (and ascendants, in the absence of descendants) are forced heirs. To be noted that grooms opting for the separation of property regime may enter into a prenuptial agreement waiving their right to inherit.

The proportion of the value of the assets the forced heirs are entitled to varies between 1/3 and 2/3.

Russia Small Flag Russia

There are two regimes for succession: inheritance by operation of law and inheritance under the will. Unless a will is duly executed, the estate is distributed according to the Russian statutory rules of succession which prescribes for an order of eight lines of heirs in a descending order of priority (successors in the latter line have rights only in the absence of heirs (who accepted the estate) in the former line): 1) children, spouse and parents; 2) siblings and grandparents; 3) uncles and aunts; 4) grandparents; 5) grand-nieces and grand-nephews, grand-aunt and grand-uncle; 6) cousins once removed; 7) step-children, step-parents; 8) disabled dependants.

The Russian Civil Code (Art. 1148, 1149) gives the mandatory preference to specific successors: the minor or disabled child of the deceased, disabled spouse, parents and disabled dependants are entitled to no less than half of what they could receive by inheritance under law regardless of the content of the will.

Serbia Small Flag Serbia

Pursuant to the Succession Act, there are two bases of succession: a Will, or, in the absence of the Will or in case the Will does not deal with the entirety of the estate, statutory succession rules (intestacy). In any case, the succession is subject to the forced heirship rules.
In case of intestacy, heirs are ranked in five statutory heir groups, whereby each preceding group excludes the next, as follows:

1. The first statutory heir group consists of surviving descendants and a surviving spouse;

The estate is inherited on equal parts among the members of this group. If there is no surviving descendants, a spouse will not inherit the estate alone, but will be deemed as a member of the second statutory heir group.

2. The second statutory heir group consists of a surviving spouse and surviving parents (ascendants at the first degree);

The spouse generally gets half of the estate and parents get the other half. A share of the spouse can be increased or decreased depending on the circumstances. In case that spouse refuses or cannot inherit, parents will get the entire estate. If there are no parents who survived, or they refuse or cannot inherit, their share passes on to their living descendants. If neither parent left descendants, the spouse receives the entire estate.

3. The third statutory heir group consists of surviving grandparents from paternal and maternal lineage (ascendants at the second degree) and their descendants;

If inheritance was not possible in the second statutory heir group, the members of the third statutory heir group are called upon inheritance. In such case the estate is divided equally between paternal and maternal lineage, and within both lineages equally between surviving grandmother and grandfather. If any of the grandmothers or grandfathers are not alive, or refuses or cannot inherit, his/her share passes on to his/her descendants.

4. The fourth statutory heir group consist of great-grandmothers and great-grandfathers (ascendants at the third degree); etc.

In the absence of the statutory heirs, the ultimate heir is the Republic of Serbia.

The forced heirs are statutory heirs whose share in the estate is guaranteed by law as the reserved portion. The forced heirs are the following:

(i) in the first forced heir group: children, adoptive children, their descendants, and spouse;
(ii) in the second forced heir group: parents or adoptive parents, brothers and sisters;
(iii) in the third forced heir group: grandparents, great-grandparents, other ascendants.

The forced heirs of the first group generally get the reserved portion of 50% of what they would have inherited should the intestacy rules applied. For example, in case a spouse and one child survived, under the intestacy rules their shares would be 50% each. As the forced heirs, they are both entitled to 25% of the estate (half of 50%). A spouse is always entitled to a reserved portion of 50% of his/her statutory share (regardless of whether he/she inherits in the first or in the second statutory heir group).

The forced heirs of the second and third group are entitled to one-third of what they would have inherited under the intestacy rules.

The reserved portion is primarily a monetary claim, which means that the forced heir could primarily claim cash compensation and not title in a particular asset. However, this can be regulated differently in a Will, and also upon request of a forced heir who lived in the same household with a deceased, a court could grant him/her a title in a particular asset instead of cash compensation.

For the purposes of calculation of the reserved portion, the estate consists of all of the assets owned by the deceased at the time of death, including assets disposed of by a Will, net of his debts and costs such as costs of making an inventory of assets and the costs of funeral (net estate). The net estate is further increased by the value of gifts which deceased made to statutory successors during his life and gifts which he made to other persons during the last year of his life.

For the purpose of calculation of the reserved portion, the estate does not include assets validly transferred to descendants and spouse during the lifetime of the deceased under the valid agreement made in a form of a notarial deed. Also, funds spent on subsistence and education of statutory heirs, as well as charitable gifts are not included.

Switzerland Small Flag Switzerland

Under Swiss law, heirs acquire the entire estate, i.e. assets and liabilities, by operation of law simultaneously with the decedent's death.

Swiss succession law determines the statutory heirs, i.e. the persons entitled to inherit from a decedent. Descendants and ancestors are divided in parentelas as follows:

(a) descendants constitute the first parentela;
(b) parents and their descendants the second parentela; and
(c) grandparents and their descendants the third parentela.

Members of one parentela are only statutory heirs if members of the previous parentela predecease the decedent. Within one parentela, all heirs are treated equally.

Surviving spouses and registered partners are also statutory heirs. Their entitlement amounts to (a) 1/2 of the estate where they share with descendants (first parentela), (b) 3/4 of the estate where they share with parents and their descendants (second parentela) and (c) the entire estate where only grandparents and their descendants (third parentela) survive the decedent.

Swiss forced heirship rules grant the following statutory heirs a protected share, which is a quota of their statutory inheritance entitlement: (a) 3/4 for descendants, (b) 1/2 for parents and (c) 1/2 for the surviving spouse/registered partner. The remainder of the estate, the so-called freely distributable quota, which varies between 3/8 and 1/2 of the estate depending on the heirs, can be freely disposed of by a testator.

United States Small Flag United States

The rules of succession in the US are determined at the state, not federal, level. In almost every state, 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 be 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.

Singapore Small Flag Singapore

There is no restriction on the manner by which non-Muslims in Singapore may choose to provide for their succession. The rule as to testamentary freedom for non-Muslims is subject to the provisions of the Inheritance (Family Provision) Act (Cap. 138) which allows the court to provide reasonable maintenance to the deceased’s dependant out of the deceased’s net estate. “Dependent” is defined as a spouse, a child (of any gender or age) who is by reason of physical or mental incapacity incapable of maintaining himself or herself, an infant son or an unmarried daughter.

Funds held through a deceased’s Central Provident Fund account (applicable to Singapore citizens and permanent residents) cannot be disposed of via a will, but only through the appropriate instrument of nomination.

Forced heirship rules apply to Muslim persons who are domiciled in Singapore at the time of their death. The estate for such persons must be distributed in accordance with Islamic inheritance laws, or faraid laws, which generally set out fixed rules, based on the relations who survive the deceased Muslim, the relatives who should inherit and the proportion of their inheritance.

Generally, a Muslim domiciled in Singapore can only give away up to one third of his estate by his will, and only to persons who are not related to him by blood (such as one’s parents, spouses, siblings and children). This is so unless all his eligible faraid beneficiaries consent to the Muslim dealing with more than one third of his estate in his will. This exception was endorsed in Singapore, in the case of Mohamed Ismail bin Ibrahim v Mohammad Taha bin Ibrahim [2004] SGHC 210.

From a succession planning perspective, it is useful to know that the Singapore Court of Appeal in Shafeeg bin Salim Talbin v Fatimah bte Abud bin Talib [2010] SGCA 11 has held that survivorship applies to assets that are held by a deceased Muslim in joint names with another party. Upon the death of the Muslim, the surviving joint owner would take legal and beneficial ownership of the whole of the jointly held property and the jointly held property will not be distributed as part of the deceased Muslim’s estate. The Court of Appeal further opined that if the settlement of a Muslim’s assets into a trust were completed during the deceased’s lifetime, such assets will be treated as trust assets and not part of the estate and effects of the Muslim that would be subject to Islamic inheritance laws.

Israel Small Flag Israel

There are no forced heirship rules in Israel. However, in the absence of a valid will, the following default heirship rules apply:

(a) if the deceased is survived by children and a spouse - the deceased’s spouse receives half of the estate, and the remaining half is divided among the children, equally;

(b) if there are children, but no spouse - the deceased’s children share, equally, the entire estate;

(c) if there are no children, but there is a spouse - the spouse receives two thirds of the estate, and the remaining third is inherited by the deceased’s parents, or siblings;

(d) if there are no children nor a spouse - the deceased’s parents and siblings share the entire estate;

(e) if there are no children, parents or siblings, but there is a spouse - the spouse inherits 100% of the estate;

(f) if there are no children, spouse, parents or siblings, - the estate is divided equally between the deceased’s grandparents and their offspring;

(g) if a deceased’s child is not alive, his or her share of the estate is divided between the deceased’s grandchildren from said child; otherwise, if an heir stated above is not alive, his or /her share of the estate passes on to his or /her legal heirs.

France Small Flag France

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.

Germany Small Flag Germany

German law grants testimonial freedom. The testator is therefore free to choose his heirs and how his estate shall be distributed. He is, however, not obliged to make a Will. In that case, the legal rule of succession is as follows:

(each of the following categories precludes the subsequent heirs from receiving a share of the deceased’s estate):

  • children of the deceased and, subordinated, their descendants;
  • parents of the deceased and, subordinated, their descendants;
  • grandparents of the deceased and, subordinated, their descendants; and
  • great-grandparents of the deceased and, subordinated, their descendants.

Relatives within a particular category inherit in equal shares (succession per stirpes).

There is a forced heirship regime. Descendants, spouses, civil partners and parents are entitled to make a monetary claim for a compulsory share of the deceased’s estate if they are excluded from the testator’s will or if the share granted to them is less than their compulsory share. A relative’s compulsory share generally amounts to 50 per cent of the value of that relative’s share on intestacy.

United Kingdom Small Flag United Kingdom

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.

Updated: January 17, 2020