Restrictions on the freedom to dispose of one’s succession by will (reserved portion).
Last update: 10/3/2012
The reserved portion, which limits the testator’s right to dispose freely of his/her estate, amounts to half of the legal share in the inheritance for each forced heir. Persons entitled to the reserved part of the asset are the spouse, the registered partner, the descendants, i.e. children and grandchildren where a child has died before the testator, and the parents.
Detailed information
Is there a reserved portion set aside for heirs? What percentage of the estate does this reserved portion represent? What is its legal nature?
The reserved portion to which the children, surviving spouse, registered partner and parents of the deceased (if the deceased has not left any descendants) are entitled corresponds to half of their legal portion of their inheritance. The reserved portion is a debt claim against part of the financial value of the estate (§ 661 PTK). For the surviving spouse the reserved portion is the restricted usufruct right on his/her inheritance (§665 (1)-(2) PTK).
What is the procedure to be followed to assert a right to the reserved portion? What are the time limits?
As a general rule, the reserved portion should be delivered as money. In this case, the reserved portion should be claimed within five years from the opening of the inheritance. However, if the deceased provides for that the reserved portion should be a certain object, the claim for this does not lapse (§ 324 (1), §325 (1), § 115 (1) PTK).
Is it possible to renounce the reserved portion?
Heirs who are entitled to a reserved portion may renounce to it in a written contract made with the testator (§ 603, 605 (1) PTK).
