Restrictions on the freedom to dispose of one’s succession by will (reserved portion).
Last update: 10/3/2012
The testator’s children (adoptees), spouse, parents (adoptive parents) who were entitled to maintenance on the day of the testator’s death shall inherit, irrespective of the content of the will, half of the share that each of them would have been entitled to by operation of law (reserved portion) unless more is left by the will.
The rightful heir cannot waive the reserved portion before the death of the deceased.
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?
A reserved portion of estate must be set aside (1/2 of that part which an heir would get in case of intestate succession) for heirs in particular circumstance: the testator’s children (adoptees), spouse, parents (adoptive parents) who were entitled to maintenance on the day of the testator’s death shall inherit, irrespective of the content of the will, 50% of the share that each of them would have been entitled to by operation of law (mandatory share) unless more is bequeathed by the will. The mandatory share shall be determined taking in regard the value of the inheritable estate, including ordinary house furnishing and household equipment (§ 5.20 CC).
What is the procedure to be followed to assert a right to the reserved portion? What are the time limits?
General procedure is applied to such a situation (§ 5.50 CC): in order to acquire a succession, a successor has to accept it. This must be performed within three months from the day of the opening of succession.
Is it possible to renounce the reserved portion?
Heirs have the right to the reserved portion, but are not obliged to accept it.
