Non-missing heir and the mandatory share or when are you entitled to an inheritance?

Quick overview

The testator’s children, and if they do not inherit, their descendants, are the heirs at law. A minor non-minor heir must receive at least three-quarters of his/her legal share of the inheritance, and an adult at least one-quarter. Importantly, however, the non-minor heir is generally not entitled to a specific piece of property or to a share of the estate as such, but to a sum of money corresponding to the value of his compulsory share. He may lose this entitlement in particular if he has renounced the inheritance or the obligatory share, is incapable of inheriting or has been validly disinherited.

Who is the heir apparent

The Civil Code defines non-nominative heirs quite narrowly. They are the children of the deceased and, if they do not inherit, their descendants take their place. Therefore, the spouse, partner, sibling or parent of the deceased is not automatically a non-passing heir. They may have the right of inheritance by operation of law or by will, but only the descendants have the special protection of the obligatory share.

This is a common misunderstanding in practice. People sometimes think that the “immediate family” is always guaranteed a minimum share. This is not the case. If, for example, a testator makes a will in favour of his wife and his brother, he may thereby completely bypass his parents or siblings. However, for one’s own children, this cannot be done without further steps.

What is the compulsory part and how is it calculated

The compulsory share is the legal protection of a non-delegable heir. It must be at least three-quarters of the minor’s legal share, and at least one-quarter of the minor’s legal share. The basis is therefore always what the heir in question would have received in a legal succession. Only from this amount is his protected minimum calculated.

Practical example: the testator leaves a wife and two adult children. If the inheritance were intestate, each of them would receive one third of the estate. If the testator bequeaths everything to his wife, each of his children is therefore entitled to at least one quarter of the one third, i.e. one twelfth of the value of the estate, as an adult non-minor heir.

For a minor child, the result would be significantly higher. If, in the same circumstances, one of the children were a minor, he would be entitled to a compulsory share of three quarters of one third, i.e. one quarter of the entire estate.

In practice, we often see families confusing the mandatory share with an “automatic inheritance”. However, this is not accurate. The mandatory share is a minimum legal protection for the offspring, not a guarantee that they will receive a specific property, car or share in a company.

A non-delegable heir does not automatically have a right to a portion of the estate

This is fundamental to inheritance disputes. A non-mutual heir is not entitled to a share of the estate as such, but to a sum of money equal to the value of his or her obligatory share. In other words: if the testator bequeaths a house to his wife and a business to his son, the omitted daughter will usually not ask for a “piece of the house” but for money corresponding to the value of her obligatory share. In addition, the court may allow instalments or deferment of payment if the statutory conditions are met.

In practice, this often helps where immediate payment of the obligatory share would mean a forced sale of the family home or a liquidating blow to a going concern.

When a non-nominee heir can be excluded from the succession

A non-missing heir is not invincible. He or she may lose the right to the obligatory share in several situations foreseen by law. The Civil Code expressly states that the right to the obligatory share is not available to a person who has renounced the inheritance or the obligatory share, who is incapable of inheriting or who has been disinherited by the testator.

Incapacity to inherit typically falls on an heir who has committed a deliberate criminal offence against the testator or a reprehensible act against the testator’s will. In the case of disinheritance, the law allows only precise grounds. A testator may disinherit a descendant if he or she has failed to provide him or her with the necessary assistance in his or her time of need, has not shown genuine concern for him or her, has been convicted of a crime committed under circumstances indicative of a depraved character, or has led a permanently disorderly life. A special rule also applies to an indebted or prodigal offspring: there, disinheritance can only be applied so that the obligatory share goes to his children or other descendants.

It is also important that if the testator does not specify the reason for disinheritance in his deed, the non-probate heir is still entitled to the obligatory share, unless a legal reason for disinheritance is proved against him.

What if the non-minor heir is omitted from the will

The mere omission of a non-minor heir does not automatically invalidate the entire will. The law deals with the situation in a more subtle way: if the testator knew that a descendant was alive and nevertheless omitted him in the will, that descendant is entitled to his obligatory share. If he has been curtailed or omitted, the heirs and legatees will contribute proportionately to the settlement of his right.

The Civil Code also expressly provides for the case where a non-negligible heir is omitted in the will not by mistake. If he has at the same time committed an act which fulfils the statutory ground for disinheritance, such omission is regarded as a disinheritance made tacitly and lawfully. If, on the other hand, the non-deceased heir proves that he was omitted by the testator only because he was not aware of it when he made the provision for death, he retains the right to the share due.

A typical practical example: the testator makes a will after a divorce and leaves everything to his new wife. He does not mention the adult son from the first relationship at all in the text. If the son has not been validly disinherited and there is no legal reason why he should be excluded from the inheritance, he can demand payment of his obligatory share from the heirs.

How the claim for the mandatory share can be dealt with in practice

In inheritance proceedings, it is first necessary to correctly determine who is a non-minor heir, whether he has been omitted, whether there is a deed of disinheritance and whether the disinheritance is valid. Only then is the amount of the obligatory share and the method of its settlement addressed. Sometimes everything is settled by agreement between the heirs, other times the dispute has to be opened directly in the estate proceedings or in a subsequent court case.

In practice, the most common mistake is that the family focuses only on the text of the will and overlooks the fact that the law protects descendants beyond it. A second common mistake is the belief that once someone is “stricken from probate” they no longer have any rights. This may not be the case for non-nominee heirs.

Summary

The children of the testator, and if they do not inherit themselves, their descendants, are the non-passing heirs. A minor non-minor heir is entitled to at least three quarters of his legal share of the inheritance, an adult to at least one quarter. As a rule, however, the non-minor heir is not entitled to a specific part of the estate but to a sum of money corresponding to the value of his compulsory share. He may lose this right in particular if he has renounced the inheritance or the obligatory share, is incapable of inheriting or has been validly disinherited. The mere omission in the will does not mean that he loses his right.