The compulsory portion of the inheritance can only be withdrawn from the entitled heirs under strict legal conditions. Both substantive and formal requirements must be observed.
A compulsory share in the inheritance is guaranteed to the descendants or the parents as well as the surviving spouse of the decedent. The compulsory share is a minimum share to which these heirs (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:
It comes into consideration if the heir to the compulsory portion severely violated a duty under family law (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 of a compulsory portion heir against the testator during his lifetime or the refusal of any contact combined with obstructive behavior.
Its purpose is to partially protect the inherited property from the disinherited person’s creditors. Only descendants can be preventively disinherited and only to a certain extent. It is a prerequisite that loss certificates exist against the disinherited child when the inheritance is opened. The testator can only deprive his insolvent child of half of his compulsory portion and must mandatorily give this portion to the grandchildren or later-born great-grandchildren. As a consequence, the creditors of the indebted child can only access a part of the inherited property.
It can be carried out if the heir to the compulsory portion has committed a serious crime against the testator or a person close to him, such as relatives or friends. Punitive inheritance means that the person concerned is completely excluded from the inheritance. However, if he or she has descendants, they retain their claim to the deprived compulsory portion. 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, no matter how well founded and justified, is successfully challenged by the person concerned because of disregard of 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. We at AMATIN have experienced in numerous cases that it is not enough to give good advice, but that it is also necessary to prepare and keep the evidence in such a way that it is available at the required time. In most cases, a combination with an execution of wills by AMATIN is essential.
Contact: Jasmin Häcker-Winkenbach, Roman Kälin-Burgy, Martin Boos
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