Inheritance for children of a first marriage: what are they entitled to?

JUDr. Ondřej Preuss, Ph.D.
28. November 2024
7 minutes of reading
7 minutes of reading
Family Law

Few things can divide a family like money. Inheritance is often a sensitive subject. And the situation is all the more complicated if the testator has children from multiple marriages. Although the law on inheritance is based on the principle of fairness, without clearly defined rules, misunderstandings and conflicts between heirs can arise. In this article, we take a detailed look at how inheritance law protects children from a first marriage, what complications can arise and how to avoid them.

Families with children from different marriages are not uncommon nowadays. The complex relationships that arise as a result of divorce, remarriage and partnerships can have a significant impact on the question of inheritance. Indeed, children of a first marriage often fear that they will be disadvantaged in inheritance proceedings in favour of the other spouse or children of a later relationship.

These fears are not entirely unfounded. In practice, disputes over property may arise, especially if:

  • The testator did not leave a holographic will or any other type of will and the succession follows the legal succession.
  • The testator has transferred part of the estate to the other spouse or children of the second marriage during his/her lifetime.
  • It is not clear what all belongs to the inheritance (e.g. property acquired under the community of property).

These situations can only be avoided by clear legal settings, either in the form of a will or other legal acts.

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Inheritance rights of children from a first marriage

Inheritance in the Czech Republic is regulated primarily by the Civil Code and specific legal norms that define the process of inheritance, inheritance titles and the rights of heirs. The law in the Czech Republic guarantees all children the same right of inheritance, regardless of whether they come from a first or second marriage. The key rules are as follows:

Legal succession: if the testator does not leave a will, the estate is distributed according to the law. The children of the first marriage fall into the first inheritance class, which includes all the children of the testator and his/her spouse. In this class, the heirs divide the property equally.

What does this look like in practice? The testator has two children from his first marriage and one daughter from his second marriage. If he/she was still married at the time of death, the inheritance is divided into four equal parts (the spouse gets 1/4 and each child also gets 1/4).

Mandatory share: minor children are entitled to three quarters of their legal share. Minor children are entitled to one quarter of their legal share. This obligatory share is inalienable, i.e. it cannot be denied even by will. The legal share is the part of the inheritance which would have been due to the children under the law if they had not been omitted.

If the testator makes awill , he can specify to whom he wants to leave his property. However, the mandatory share must always be paid to the children. If the will violates the mandatory share, the children of the first marriage can go to court.

What can complicate inheritance for children of a first marriage?

The law is clear and the rules are fixed. However, in practice, situations can arise that can complicate the inheritance process for children of a first marriage. What are the most common cases?

Unclear property relations

One of the biggest problems tends to be determining what all belongs to the inheritance. During the remarriage, the deceased may have acquired property that is now part of the marital property. Therefore, when dealing with the inheritance for the children of the first marriage, it is first necessary to determine what of the current assets are part of the community property and what is the sole property of the testator.

What does this look like in practice? If the deceased owned the house before entering into the second marriage, the house is his/her sole property and therefore falls entirely within the inheritance. However, if he bought the house during the second marriage, half of it belongs to the spouse and only the other half goes to the children of the first marriage.

Transfers of property during life

It is said that injustice makes the world go round. And when envy is added to it, inheritance proceedings can be a very unpleasant process. For example, if the testator decides during his or her lifetime to transfer his or her property to the children of a subsequent marriage or to a current partner. An unequal distribution of the inheritance due to previously transferred assets can then lead to a sense of injustice for the children of the first marriage.

Inheritance and minor children

If the children of the first marriage are minors, their share of the inheritance is administered by the guardian. This is appointed by the court. It may also be the case that this guardian is the other spouse of the deceased. If there is not a good relationship between the children and the deceased’s second spouse, there are often conflicts between them as heirs.

If you want to avoid conflicts when dealing with your inheritance, we recommend making a will. As the testator, you can determine in advance who should receive what share of your estate. You can also draw up an inheritance agreement in which you and your heirs agree on who gets what. You can also give your property to your children from your first marriage during your lifetime to ensure they get a fair share according to your wishes.

Tip na článek

Tip: Do you inherit but have debts? Read our article to find out how foreclosure interferes with inheritance.

Practical examples

Parent died without a will: the parent has two children from the first marriage and one child from the second marriage. His estate includes a house, a car and financial savings of CZK 1 000 000. The wife living at the time of death shares equally with the children according to the law.

Result: Wife: 1/4 of the house, 250 000 CZK, 1/4 of the car. Each child: 1/4 of the house, 250 000 CZK, 1/4 of the car.

Parent left a will: In the will, the parent left the entire estate to his second wife. The children of the first marriage, however, demand a mandatory share. The court orders the wife to pay each child his/her obligatory share (e.g. 1/4 of the estate in the case of adult children).

Result: the second wife will get most of the property, but will have to pay part to the children of the first marriage.

Summary

Inheritance can be a sensitive topic, especially in families with children from multiple marriages. Czech law ensures that all children of the testator have the same rights, regardless of their origins. Unless a will is made, the inheritance is divided according to the legal succession, with the children and spouse sharing equally in the estate. The compulsory share to which minor children are entitled of three quarters of the legal share and minor children of one quarter cannot be circumvented even by a will.

Complications arise, for example, when there is confusion about property relations, transfers of property during the testator’s lifetime or the administration of the inheritance of minor children. To avoid disputes, we recommend that you draw up a will with a lawyer or make a gift of property during your lifetime.

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Author of the article

JUDr. Ondřej Preuss, Ph.D.

Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.

Education
  • Law, Ph.D, Pf UK in Prague
  • Law, L’université Nancy-II, Nancy
  • Law, Master’s degree (Mgr.), Pf UK in Prague
  • International Territorial Studies (Bc.), FSV UK in Prague

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