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When and how can I disinherit?

Nature MorteVivante, Amatin AG 2021

You can withdraw the compulsory share of the inheritance from the entitled heirs under specific legal conditions. Content and formal requirements must be observed.

Why an update on disinheritance? As a direct consequence of longer life, from which the “baby boomer cohort” will benefit to an unprecedented degree, the third stage of life is gradually mutating into the longest phase of life. Demography will help the archaic, deeply rooted disinheritance to blossom to an unimagined extent. Ideally, disinheritance will enable a better economic balance.

A compulsory share of the inheritance is guaranteed to the descendants and the surviving spouse of the deceased (until the end of 2022 also to the parents). The compulsory share is the minimum share of the inheritance (estate) to which the descendants and the spouse (compulsory heirs) are entitled. Disinheritance, i.e. withdrawal of the compulsory portion, is only possible if specific conditions are met. If these conditions are not met, the disinheritance still applies, unless the heir concerned contests it.

There are three types of disinheritance: 

1. A family breach of duty disinheritance. 

It presupposes that the heir to the compulsory portion severely violated a family law duty (yes, there are not only children’s rights but also children’s duties!) towards the testator or one of the testator’s relatives. Examples are a groundless criminal complaint by an heir to the compulsory portion against the testator or the refusal of any contact combined with obstructive behavior. Especially the refusal of any contact – as a direct consequence of living longer – is likely to occur more frequently in the future (combined with the refusal of any support in old age).

2. Preventive inheritance 

It is intended to partially protect the inherited property from the creditors of the disinherited. Only descendants can be preventively disinherited and only to a certain extent. It is a prerequisite that at the time of the opening of the inheritance, there are certificates of loss against the disinherited child. The testator can only deprive his insolvent child of half of his compulsory portion, and must imperatively give this portion to the grandchildren or later great-grandchildren. As a consequence, the creditors of the indebted child can only seize a part of the inherited property.

3. Punitive inheritance 

For this to happen, the heir to the compulsory portion must have committed a serious crime against the testator or a person close to him (such as relatives or friends). The punitive inheritance excludes the person concerned completely from the inheritance. However, if the perpetrator himself has descendants, they retain their claim to the compulsory portion withdrawn from the parent. They therefore take the place of the disinherited person.

In addition, the disinheritance must comply with certain formal requirements; if they are not fulfilled, the order of disinheritance shall nevertheless apply unless the heir concerned contests it.

If a disinheritance, however well-founded and justified, is successfully challenged by the person concerned for failure to observe the formalities, the disinherited person will nevertheless receive the share of the inheritance that was withdrawn – and precisely the result not desired by the testator will occur. Provision must also be made for this eventuality. We have experienced in numerous cases that evidence must be prepared and stored so that it is available at the required time. In most cases, a combination with an exdecution of wills by AMATIN is indispensable.

AMATIN AG  Rechtsanwälte  │  Attorneys at Law  │  Conseiller Juridiques/Avocats

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