Forced Heirship Law

The forced heirship law is a legally enshrined right of certain close relatives to a minimum share of the inheritance. It ensures that close relatives receive a share of the inheritance, even if they are not named or are even excluded in the will or inheritance contract.

Forced Heirs and Legal Basis for Claims

Generally, a testator can decide over their estate before their death. However, the law sets certain limits in favor of the testator’s closest relatives: Those entitled to a forced share are the testator’s spouse and children, as well as their descendants, should the children no longer be alive.

For the forced share claim, the legal order of succession must be consulted: Those entitled to a forced share are always entitled to half of the legal inheritance share. Forced heirs can (but are not obliged to) assert their claim against the heir and demand their share within three years of gaining knowledge.

Important to know: The forced share is not a share of the estate itself, but a pure monetary claim against the heirs. Those entitled to a forced share therefore do not become co-heirs, but have a claim to payment.

If, for example, a testator has a wife and two children, they receive the entire estate in equal parts according to the legal order of succession, i.e., one-third each. If, however, the testator has drawn up a will in favor of a third party, the wife and the two children can assert a forced share claim for half of their legal inheritance share (here: 1/6) against the third party (heir).

Gift Imputation

The legislator ensures that a testator cannot circumvent forced share claims through numerous gifts before their death, and therefore stipulates that certain gifts must be imputed to the forced share.

If forced heirs demand imputation, they impute gifts made to other forced heirs to their forced share. These include, among others,

• Endowment of a child (e.g., gift of an apartment)
• Advance on the forced share
• Compensation for waiver of inheritance or forced share

Forced heirs can also have gifts made to third parties (persons not entitled to a forced share) imputed to the forced share. However, this only applies to gifts made by the testator within the last two years before their death.

Sebastian Riedlmair
Harlander & Partner Attorneys „Schenkungen zu Lebzeiten sind oft gut gemeint, rechtlich aber heikel. Eine juristische Prüfung schützt vor ungewollten Überraschungen“

Deprivation of Forced Share

A testator can, by means of a testamentary disposition, deprive their forced heirs of their forced share = disinheritance. However, certain reasons must exist for this.

The forced share can be deprived if the beneficiary

• has committed a criminally punishable act against the deceased that can only be committed intentionally and is punishable by more than one year of imprisonment,
• has committed a criminally punishable act against the spouse, registered partner, cohabitant, or lineal relatives, the siblings of the deceased and their children, spouses, registered partners, or cohabitants, as well as the stepchildren of the deceased, which can only be committed intentionally and is punishable by more than one year of imprisonment,
• has intentionally frustrated or attempted to frustrate the realization of the deceased’s true last will,
• has reprehensibly inflicted severe emotional distress upon the deceased,
• has otherwise family law obligations towards the deceased, or grossly neglected their
• has been sentenced to life imprisonment or twenty years’ imprisonment for one or more intentionally committed criminal offenses.

A ground for disinheritance of a forced heir can also be raised by another heir in the probate proceedings. The latter must prove the existence of the ground.

Reduction of the Compulsory Portion

A forced share can also be reduced, among other things. For this, the deceased and the forced heir must have had no contact or relationship with each other for a longer period (at least 20 years). In such cases, the court can reduce the forced share claim by half.

However, if the deceased refused contact without a comprehensible reason, the claim remains undiminished.

Obligation to Pay out and Liability for the Forced Share

The forced share claim is initially directed against the estate as a legal entity. After the grant of probate, the heirs are personally liable for the payment. Legatees or gifted third parties are liable only under certain conditions, for example, if the estate is insufficient to cover the forced share.

Forced Share Claim also for Non-Marital Descendants

There is no difference in inheritance law between marital and non-marital children. If the parents were not married at the time of a child’s birth, the non-marital child still inherits upon the father’s death. The only prerequisite for this is that the paternity of the testator is established. Proof of this can also be provided only after the father’s death.

Statute of Limitations

The limitation period is three years from the time the forced heir gained knowledge of the death and the disposition affecting them, or 30 years after the death.

Your Benefits with Legal Assistance

Especially in forced heirship law, a factually sound and strategically astute approach is crucial. Whether it concerns the enforcement of a claim, the examination of grounds for disinheritance, or the avoidance of future disputes, legal assistance provides clarity, protects your rights, and strengthens your negotiating position.

Legal assistance helps you with

• the calculation of forced share and examination of imputations
• the enforcement or defense of forced share claims
• the drafting of legally sound testamentary dispositions
• the representation in probate proceedings or civil litigation

Peter Harlander
Harlander & Partner Rechtsanwälte „Wer frühzeitig klare Verhältnisse schafft, erspart seinen Angehörigen später viel Streit.“

Frequently Asked Questions – FAQ