Restrictions on the freedom to dispose of one’s succession by will (reserved portion).
Last update: 10/3/2012
The reserved portion amounts to half the value of the rightful heir‘s share in the inheritance. In the presence of rightful heirs (in particular of the spouse and children of the deceased), the deceased can then freely dispose of only half of the succession (in value).
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?
Forced heirs are entitled to a portion of the deceased’s estate beyond the deceased’s disposal, referred to as the ‘reserved portion’ (Article 26 of the Inheritance Act).
The descendants and the spouse are entitled to one half of the reserved portion while other persons are entitled to one third of the reserved portion.
What is the procedure to be followed to assert a right to the reserved portion? What are the time limits?
A forced heir asserts his/her right to the reserved portion at the succession hearing; if the heirs fail to reach an agreement the succession court interrupts the succession hearing and suggests a succession action. The deadline for claiming a legal action is three years from the succession of the will and/or from the deceased declared dead (Article 41 of the Inheritance Act).
Is it possible to renounce the reserved portion?
An heir may renounce the reserved portion by filing the respective statement to the court by the end of the succession hearing (Article 133 of the Inheritance Act). However, the descendant may renounce the appurtenant reserved portion in agreement with his/her predecessor already before the latter’s death (Article 137 of the Inheritance Act).
