Forced heirship
Encyclopedia
Forced heirship is a form of partible inheritance
whereby a deceased's estate
is separated into (1) an indefeasible portion, the forced estate, passing to those the deceased is survived by, and (2) a discretionary portion, or free estate, to be freely disposed of by will
. Forced heirship is generally a feature of Civil law
legal systems which do not recognize total freedom of testation. Normally, the deceased's estate is in-gathered and wound up without discharging liabilities, which means accepting inheritance includes accepting the liabilities attached to inherited property. The forced estate is divided into shares which include the share of issue (legitime
or child's share) and the spousal share. This provides a minimum protection that cannot be defeated by will. The free estate, on the other hand, is at the discretion of a testator
to be distributed by will on death to whomsoever he or she chooses. Takers in the forced estate are known as forced heirs.
Forced heirship laws are most prevalent among Civil law
jurisdictions and in Islamic countries; these include major countries such as France
, Saudi Arabia
, Japan
, and most other countries in the world. Reckoning shares in instances of multiple or no children and lack of surviving spouse vary from country to country.
Advocates of forced heirship contend that it is perfectly proper for testators to be required to make adequate provision for their dependents, and that most countries in the world permit wills to be varied where they would leave dependents destitute. Critics suggest that there is a great difference between varying wills to the minimum degree to provide sufficient financial support for dependents and prohibiting the testator from distributing the estate or a proportion of the estate to any female children, or younger male children, and that it cannot be any less repugnant to force a deceased person to distribute their assets in a certain manner on their death than it would be to tell them how they may do so during their lifetime.
custom
for intestate
inheritance according to which all of a deceased's personalty
was divided into thirds - the widow's part, child's part, and dead's part - the last of which, consisting of clothes, weapons, farm animals and implements, was usually buried with the deceased. With the adoption of Christian funerary practices, it became common to gift away the dead's part, and after the revival of the will, and consequently of testation, the dead's part came to be freely disposable.
Realty
, or heritable property, on the other hand, was originally inherited in joint tenancy, termed gavelkind
, and passed on to the kin group as a whole. However, after the household superseded the kin group in importance in the late Middle Ages, preference was given to the deceased's immediate family, specifically any surviving sons, and none could be favored over his siblings. However, gavelkind inheritance gave rise to inter-family rivalries, so primogeniture
laws arose in some areas of feudal Europe giving preference to the eldest son in order to stem feuding. Nevertheless, under medieval communal society, family land could not be sold except for cause, and the family essentially had a right of first refusal in any such sale; in some places, this restriction also applied to gifts.
Widow
s were universally disinherited, though they were varyingly entitled to a dower
and/or a terce (or curtesy in the case of widowers), that is, one third of the heritable marital estate. The terce was earliest known as tertia collaborationis and first appears in the Ripuarian law code
, making it also a localized Germanic institution.
Eventually, these elements were all consolidated into the modern form of forced heirship most notably in Revolutionary France, which treated personalty and realty in the same way and applied gavelkind inheritance and the system of thirds to both forms of property. After abandoning dowries and dowers in the 20th century, many European countries created or increased the spousal share to be on par with the share of issue.
, Civil Code article 1493 dictates that children under 24 at the time of death and interdicts (individuals permanently incapable of caring for themselves) who are not disinherited (LCC art. 1494) qualify as forced heirs. The legitime is equal to 25% of the patrimony
(if one forced heir); or 50% (if more than one); and each forced heir will receive the lesser of an equal proportion of the legitime or what they would have received through intestacy
(LCC art. 1495, Succession of Greenlaw). If a person who would have otherwise qualified as a forced heir dies before the parent, rights to that share may pass to that person's children, although how that share is distributed among them if one or more is an interdict remains unsettled law. Forced heirs may demand collation, whereby certain gifts received by a forced heir within three years of the death of the parent may be subtracted from their share. Louisiana does not have a forced heirship provision for spouses, however at death the spouse's interest in any community property
is converted to his or her separate property; and a usufruct
is granted over the remaining community (with the forced heirs as naked owners of their respective shares). That usufruct terminates at death or remarriage.
Wealthy individuals in the U.S. sometimes seek to circumvent forced heirship laws by transferring assets into an offshore company
and seeking to settle the shares
in the offshore company in a trust
governed by the laws of a jurisdiction outside their domicile
.
Partible inheritance
Partible inheritance is a general term applied to systems of inheritance in which property may be apportioned among heirs. It contrasts in particular with primogeniture, which requires that the whole inheritance passes to the eldest son, and with agnatic seniority where the succession passes to...
whereby a deceased's estate
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
is separated into (1) an indefeasible portion, the forced estate, passing to those the deceased is survived by, and (2) a discretionary portion, or free estate, to be freely disposed of by will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
. Forced heirship is generally a feature of Civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
legal systems which do not recognize total freedom of testation. Normally, the deceased's estate is in-gathered and wound up without discharging liabilities, which means accepting inheritance includes accepting the liabilities attached to inherited property. The forced estate is divided into shares which include the share of issue (legitime
Legitime
In Civil law and Roman law, the legitime , or forced share, of a decedent's estate is that portion of the estate from which he cannot disinherit his children, or his parents, without sufficient legal cause...
or child's share) and the spousal share. This provides a minimum protection that cannot be defeated by will. The free estate, on the other hand, is at the discretion of a testator
Testator
A testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death. It is any "person who makes a will."-Related terms:...
to be distributed by will on death to whomsoever he or she chooses. Takers in the forced estate are known as forced heirs.
Forced heirship laws are most prevalent among Civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
jurisdictions and in Islamic countries; these include major countries such as France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
, Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, and most other countries in the world. Reckoning shares in instances of multiple or no children and lack of surviving spouse vary from country to country.
Advocates of forced heirship contend that it is perfectly proper for testators to be required to make adequate provision for their dependents, and that most countries in the world permit wills to be varied where they would leave dependents destitute. Critics suggest that there is a great difference between varying wills to the minimum degree to provide sufficient financial support for dependents and prohibiting the testator from distributing the estate or a proportion of the estate to any female children, or younger male children, and that it cannot be any less repugnant to force a deceased person to distribute their assets in a certain manner on their death than it would be to tell them how they may do so during their lifetime.
History
The institution began as a GermanicGermanic peoples
The Germanic peoples are an Indo-European ethno-linguistic group of Northern European origin, identified by their use of the Indo-European Germanic languages which diversified out of Proto-Germanic during the Pre-Roman Iron Age.Originating about 1800 BCE from the Corded Ware Culture on the North...
custom
Custom (law)
Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:...
for intestate
Intestacy
Intestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of...
inheritance according to which all of a deceased's personalty
Personal property
Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
was divided into thirds - the widow's part, child's part, and dead's part - the last of which, consisting of clothes, weapons, farm animals and implements, was usually buried with the deceased. With the adoption of Christian funerary practices, it became common to gift away the dead's part, and after the revival of the will, and consequently of testation, the dead's part came to be freely disposable.
Realty
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
, or heritable property, on the other hand, was originally inherited in joint tenancy, termed gavelkind
Gavelkind
Gavelkind was a system of land tenure associated chiefly with the county of Kent, but found also in other parts of England. Its inheritance pattern bears resemblance to Salic patrimony and as such might testify in favour of a wider, probably ancient Germanic tradition.It was legally abolished in...
, and passed on to the kin group as a whole. However, after the household superseded the kin group in importance in the late Middle Ages, preference was given to the deceased's immediate family, specifically any surviving sons, and none could be favored over his siblings. However, gavelkind inheritance gave rise to inter-family rivalries, so primogeniture
Primogeniture
Primogeniture is the right, by law or custom, of the firstborn to inherit the entire estate, to the exclusion of younger siblings . Historically, the term implied male primogeniture, to the exclusion of females...
laws arose in some areas of feudal Europe giving preference to the eldest son in order to stem feuding. Nevertheless, under medieval communal society, family land could not be sold except for cause, and the family essentially had a right of first refusal in any such sale; in some places, this restriction also applied to gifts.
Widow
Widow
A widow is a woman whose spouse has died, while a widower is a man whose spouse has died. The state of having lost one's spouse to death is termed widowhood or occasionally viduity. The adjective form is widowed...
s were universally disinherited, though they were varyingly entitled to a dower
Dower
Dower or morning gift was a provision accorded by law to a wife for her support in the event that she should survive her husband...
and/or a terce (or curtesy in the case of widowers), that is, one third of the heritable marital estate. The terce was earliest known as tertia collaborationis and first appears in the Ripuarian law code
Lex Ripuaria
The Lex Ripuaria is a 7th century collection of Germanic law, the laws of the Ripuarian Franks. It is a major influence on the Lex Saxonum of AD 802...
, making it also a localized Germanic institution.
Eventually, these elements were all consolidated into the modern form of forced heirship most notably in Revolutionary France, which treated personalty and realty in the same way and applied gavelkind inheritance and the system of thirds to both forms of property. After abandoning dowries and dowers in the 20th century, many European countries created or increased the spousal share to be on par with the share of issue.
Louisiana
In LouisianaLouisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, Civil Code article 1493 dictates that children under 24 at the time of death and interdicts (individuals permanently incapable of caring for themselves) who are not disinherited (LCC art. 1494) qualify as forced heirs. The legitime is equal to 25% of the patrimony
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
(if one forced heir); or 50% (if more than one); and each forced heir will receive the lesser of an equal proportion of the legitime or what they would have received through intestacy
Intestacy
Intestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of...
(LCC art. 1495, Succession of Greenlaw). If a person who would have otherwise qualified as a forced heir dies before the parent, rights to that share may pass to that person's children, although how that share is distributed among them if one or more is an interdict remains unsettled law. Forced heirs may demand collation, whereby certain gifts received by a forced heir within three years of the death of the parent may be subtracted from their share. Louisiana does not have a forced heirship provision for spouses, however at death the spouse's interest in any community property
Community property
Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions...
is converted to his or her separate property; and a usufruct
Usufruct
Usufruct is the legal right to use and derive profit or benefit from property that either belongs to another person or which is under common ownership, as long as the property is not damaged or destroyed...
is granted over the remaining community (with the forced heirs as naked owners of their respective shares). That usufruct terminates at death or remarriage.
Wealthy individuals in the U.S. sometimes seek to circumvent forced heirship laws by transferring assets into an offshore company
Offshore company
The term offshore company is ambiguous. It may refer to either:# A company which is incorporated outside the jurisdiction of its primary operations regardless of whether that jurisdiction is an offshore financial centre i.e...
and seeking to settle the shares
Share (finance)
A joint stock company divides its capital into units of equal denomination. Each unit is called a share. These units are offered for sale to raise capital. This is termed as issuing shares. A person who buys share/shares of the company is called a shareholder, and by acquiring share or shares in...
in the offshore company in a trust
Trust law
In common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another...
governed by the laws of a jurisdiction outside their domicile
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
.