What Is Forced Heirship And How Might It Affect You?

August 2024

Many people in the UK don’t realise how much flexibility we have when it comes to writing our wills. This flexibility is called testamentary freedom, and it means that we are theoretically able to leave our estate to whoever we wish.

Though there are some practical implications, generally speaking, the UK’s testamentary freedom means that we have the right to divide our estates among our beneficiaries in the way of our choosing.

This is not the case everywhere. Many countries have much more prescriptive inheritance laws about how assets should be split. Some jurisdictions even dictate who can or cannot inherit from an estate.

What are forced heirship laws?

Forced heirship laws are also known as automatic inheritance laws. Both terms refer to a kind of succession law held by many countries that means certain individuals (usually a person’s children or spouse) will automatically inherit either all or a specific proportion of someone’s estate.

For example, in France, if an individual has children, these children are considered to be their ‘reserved heirs’. There are strict rules about what proportion of an estate must be left to these reserved heirs. If the person who has died had one child, that child must inherit at least half of the estate. This changes to an equal share of at least two-thirds of the estate in the case of two children, and equal shares of at least three-quarters of the estate in the case of three or more children. If the person who has died was childless, their spouse and any surviving parents would become their reserved heirs.

This type of succession law is very common, and variations of it can be found across the world, in countries including Spain, Italy, Saudi Arabia, Japan and Brazil.

What does this mean in practice?

Forced heirship laws generally benefit the children, spouse and/or parents of the person who has died. In many situations, this may well be in line with what the person who has died would likely have chosen for themselves.

However, there are lots of reasons why an individual might wish to do something less prescriptive with their estate. This type of succession law often requires equal proportions to be left to reserved heirs, which could be a problem for people who wanted to leave different proportions of their estate to their children. For instance, they may wish to leave more money to a child who was struggling financially than one who was more stable. Equally, this could be an issue for those who owned property in more than one country and wanted to bequeath an overseas property to one of their children and a UK property to the other.

Of course, these restrictions can make things particularly complicated within less traditional family set ups, as forced inheritance laws often aren’t set up to benefit stepchildren or unmarried partners. This could also be an issue for individuals who have estranged family members and would not wish them to benefit.

Why might this affect you?

You may need to consider the impact of forced heirship laws if you own assets in a country where these are in place.

This could be because:

You live overseas.
You own a holiday or retirement property overseas.
You have business interests overseas.

International probate can be very complicated, and it’s important to work with a specialist solicitor to plan ahead if you think your estate could be affected by this.

Simply owning assets in a certain country does not necessarily mean that your estate would need to be administered under that jurisdiction’s succession laws. Some countries will allow you to determine in your Will that your estate should be administered according to the laws of the country where you are a national. This is the case in many European countries, where EU Succession Regulation rules (also sometimes known as Brussels IV) give you the right to do this.

However, this is a very complex area of the law and there are always exceptions. Even if you are able to choose for your estate to be administered under the probate laws of your country of nationality, your estate may still be impacted by certain overseas succession and probate laws.

In cases where you are not able to choose, your estate may well need to be administered according to the laws of the country in which your assets are held. How this is done in practice will depend on which country you hold assets, the type of succession laws that are in place in that country, and what the legal precedence is for how that country’s inheritance laws interact with English law.

A cross-border or international probate specialist will be able to advise you on your individual situation and the best way for you to approach planning your estate.

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