The Forced (Reserved) Share of the Estate — what it is and who is entitled to it?

The forced (reserved) share of the estate represents the portion of the estate that the deceased could not freely dispose of, and which belongs to a specific circle of relatives and the surviving spouse. The primary purpose of this institution is to protect the essential subsistence interests of the deceased's closest family and to prevent the deceased from disposing of the entire estate, whether by will or by lifetime gifts, in favor of third parties or particular relatives or the spouse.

Who are the forced heirs?

Forced heirs are those persons who are called to inherit by law and who fall within the following circle of relatives:

• Descendants and adopted children (children, grandchildren, great-grandchildren, provided they would be called to inherit by law)
• The deceased's spouse
• The deceased's parents
• Siblings, grandparents and other ancestors, but only if they are permanently incapable of work and lack the necessary means of subsistence

This means that only those descendants and ancestors who would have been declared statutory heirs had there been no will may raise a claim for violation of the right to a forced share.

How large is the forced share?

The size of the forced share depends on the degree of kinship with the deceased:

• Descendants of the deceased, the spouse, and adopted children are entitled to one-half of the share they would have received under the statutory rules of inheritance
• Other forced heirs are entitled to one-third of what they would have received under the statutory rules of inheritance

For example, if the deceased had two children and a spouse, under the statutory rules of inheritance each of them would inherit 1/3 of the estate. If the deceased left a will distributing the estate differently, the forced share that each of them would have to receive amounts to 1/6 of the calculated value of the estate. This means, for example, that if a child does not receive, whether through the will, through lifetime gifts, or from property not covered by the will, at least 1/6 of the calculated value of the estate, its right to a forced share is deemed to have been violated.

How is the base for calculating the forced share determined?

What I would emphasize is that it is important for forced heirs to bear in mind that the base for calculating the forced share is not made up solely of the property the deceased owned at the moment of death. The so-called calculated value of the estate also includes all gifts that the deceased made during their lifetime, in any manner, to any of the statutory heirs — regardless of which order of succession they belong to and whether they are able or willing to inherit — as well as gifts made to third parties during the last year of the deceased's life, reduced by the amount of the deceased's debts and funeral expenses.

Taking the example above, a child's right to a forced share would be violated if it received nothing either during the deceased's lifetime or after their death, or if the property it did receive were less than 1/6 of the calculated value of the estate.

How is the right to a forced share exercised?

A violation of the right to a forced share should be raised in the probate proceedings, as a rule in the heir's statement of inheritance. In other words, the court or notary public does not take the right to a forced share into account ex officio — the forced heir must raise this fact themselves. Whether the right to a forced share will be resolved within the probate proceedings, or whether the court or notary public will refer the matter to civil litigation, depends on the position taken by the other statutory and/or testamentary heirs.

It is important to point out that the right to a forced share is subject to a statute of limitations and cannot be claimed after three years have passed from the date of the deceased's death, or, in the case of a will, three years from the date the will was probated.

Can a life-long support agreement violate the right to a forced share?

Property that passes to the support provider after the death of the supported person does not form part of the calculated value of the estate, and the forced share of a forced heir cannot be satisfied out of it. A life-long support agreement is an onerous contract, not a gratuitous legal transaction — that is, it is a contract that creates an obligation for the support provider, and the property the support provider acquires after the death of the supported person represents consideration for the support given, not a gift.

Can a forced heir be deprived of this right?

Under strictly defined conditions, the deceased may wholly or partially disinherit a forced heir if the heir seriously violated a statutory or moral obligation toward the deceased, committed a criminal offense against the deceased or their close relatives, or led a disorderly and dishonest life. Such a provision must be expressly stated and reasoned in the will, since the disinherited heir may contest it in court.

A forced heir may also be deprived of the forced share in favor of their minor children if they are over-indebted or a spendthrift. This provision, too, must be made in the same form required for a will and must be reasoned, since it may be contested.