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

Quick overview

Children of a first marriage inherit just like the other children of the testator. If they inherit by operation of law, they belong to the first inheritance class together with the spouse and all inherit equally. If the testator made a will, the children may be left out of the inheritance as heirs, but as non-nominal heirs they are usually entitled to at least a compulsory share. For an adult descendant, the compulsory share is one quarter of his/her legal share of the inheritance, for a minor three quarters. In practice, however, it is often even more important to first correctly determine what belongs to the inheritance at all and what is already the property of the surviving spouse.

Children of the first marriage have the same right of inheritance as other children

Czech inheritance law does not distinguish between children of a first marriage, a second marriage or a partnership. As far as the children of the deceased are concerned, they have in principle the same status. If the testator does not leave a will or a succession contract, the legal succession applies and in the first class of heirs the testator’s children and the testator’s spouse inherit equally. If a child does not inherit, his children or other descendants shall take his place.

Typical example: the testator has two children from a first marriage, one child from a second relationship and is married at the time of death. If he leaves no will, the estate is divided into four equal shares. The spouse gets one quarter and each child also gets one quarter. So it is not true that the second spouse automatically “pushes out” the children from the first marriage.

What happens when there is a will

If the testator makes a will, he or she can decide on his or her property other than according to the legal succession. But that doesn’t mean he can always bypass his children completely. The descendants are non-negligible heirs and the law provides them with protection through a mandatory share. For a minor descendant, the compulsory share must be at least three-quarters of his legal share of the inheritance, for an adult at least one-quarter.

However, one important point must be stressed: a non-minor heir is not, as a rule, automatically entitled to a specific part of the estate, but only to a sum of money corresponding to the value of his compulsory share. This is very important in families with several marriages. If, for example, a father bequeaths the family home to his second wife in his will, the children of the first marriage will usually not ask for “their room in the house” but for payment of the value of their obligatory share.

The biggest complication: what belongs in the inheritance and what does not

In practice, the biggest problem is not who should inherit, but what is actually inherited. If the testator was remarried or in a registered partnership with a property regime similar to marriage, it is often necessary to first separate the property that belonged to the community property from the exclusive property. Only what actually belonged to the testator is then included in the estate itself. Some texts sometimes give the impression that ‘the entire community property is divided between the spouse and the children’. In reality, the property regime between the surviving spouse and the testator is settled first, and only then is the succession dealt with.

Practical example: the testator bought a flat before his second marriage. Such an apartment will usually be his sole property and will enter the estate in its entirety. Conversely, an apartment acquired during the marriage may be part of the community property, so that only the testator’s share, not the whole property, will enter the succession. This is a frequent source of disputes between the children of the first marriage and the surviving spouse.

Gifts and transfers of property during life can change the situation

Another common problem is that a parent transfers part of the property to the other spouse or to one of the children during life. Then the other children often feel aggrieved and feel that they have been “cheated” out of the inheritance. However, the transfer of property during life does not have to be illegal. It depends on how it was made, whether it was a gift, a contract of sale, what the actual assets were and whether anything will count towards the inheritance share or the mandatory share. Transfers of property during life can significantly affect the actual outcome of the succession proceedings, even if the rules of succession themselves remain the same.

A typical example from practice: a father has two children from his first marriage and in his second marriage buys a house with his new wife, which he later transfers free of charge to her alone. After his death, the children from the first marriage find that there is almost nothing left in the inheritance. Even in such a situation, however, it may be important to examine what the property flows were, whether they were community property and whether there is room for offsetting gifts or other claims within the estate.

Minor children and special protection

If there are minor children among the heirs, the court and the notary must guard their interests even more strictly. Succession agreements are only approved if they do not conflict with the interests of the person under special protection. This is particularly important in families after divorce when the children of the first marriage and the second spouse share the estate. Adults may want to reach an agreement quickly and practically, but for minor children the court examines whether the agreement actually protects their interests.

In practice, this means that even if all the adult heirs agree, not every agreement will go through. In the case of a minor heir, a higher level of judicial scrutiny must be expected and sometimes the proceedings will be longer.

When can children from a first marriage get less than they expected

A sense of injustice does not mean that the law has been broken. The children of a first marriage may in reality get less than they expected, for example, because a significant part of the property was held in community with the other spouse, because the testator had previously donated part of the property, or because a will was made and the children are left with only the obligatory share. This in itself may not be illegal. The only legally problematic situation is when a non-nominative heir has been reduced below the legal minimum or when the extent of the estate is not correctly determined.

How to avoid disputes

For families with children from multiple relationships, it is usually safest to openly and early adjust the property situation. The most common way to do this is through a well-drafted will or inheritance agreement, or by thoughtfully settling the estate during life. This makes sense especially when a parent wants certain things to go to specific children, but at the same time does not want a protracted dispute between the children of the first marriage and the current spouse after his or her death.

Summary

Children of the first marriage have the same status in Czech inheritance law as other children of the testator. If they inherit by operation of law, they inherit together with the spouse in the first class of inheritance and all equally. If there is a will, the children may be omitted as heirs, but as non-nominal heirs they are usually entitled to at least the obligatory share. The biggest complications in practice arise not because of the “order of marriage” itself, but because of confusion around community property, gifts during life, the extent of the estate or an inaccurately drafted will.