you can be disinherited as a child?
The legitimate share: why?
It is a common misconception that children cannot be disinherited. Under current law, in effect since January 1, 2003, they can. "Yes, but then you are still entitled to your child's share" is often objected to. And that too is not (entirely) true. The issue at stake here is that of the legitimate share or, to put it nicely, "the legitimate claim." How about that?
The basic premise of our society is that, in principle, everyone may do whatever he wishes with his money. He may also decide what happens to his assets when he dies. We call the latter: freedom of testament. However, the legislator has recognized that the position of two vulnerable people may be compromised: that of the spouse and that of the child (or children). Not infrequently, they are financially dependent on the deceased, and if it turns out that the deceased has given away everything (so to speak) to charity, they would be left totally destitute. Their future could be in jeopardy. Therefore, for the benefit of these individuals, the law sets limits on the freedom to testate. The position of the surviving spouse is discussed in another post. We focus now on the testator's children.
The testator is free to disinherit one or more of his children. And if the child accepts that ("I don't need anything from him anyway!") then that remains in place. But the child does not have to accept that; by law, a child of the testator is a legitimizer. And if the disinherited child is already deceased ("pre-deceased") at the time of the parent's own death, then his or her children, if any, are legitimizers by substitution.
The legitimacy fraction
The calculation of the final legitimacy claim is complex and follows a set of steps. We begin relatively easily: we determine the inheritance share. Suppose the testator does not leave behind a spouse (who is predeceased) but has three children. He has been arguing with these for a long time, and so he has stipulated in his will that everything goes to a niece. If there were no will, there would be three heirs: the children, one-third each. That 1/3 is the inheritance share. Step two, we calculate the legitimacy fraction. that is the inheritance divided by 2. That brings us to half of 1/3 is 1/6. For each child, there is a legitimate fractional share of 1/6.
The fictitious mass
The next question then is: 1/6 of what? The answer is not: the estate. The correct answer is: the fictitious mass. According to the law, the notional mass consists of the inheritance, from which certain debts are deducted (for example, those of the funeral), but certain gifts from the past are added back. The latter is for a reason. Imagine our testator anticipates that his children will invoke the legacy. He is very wealthy and gifts that dear niece a ton every year. By the time he dies, his wealth has shrunk quite a bit. Then the children would still be left empty-handed. Therefore, gifts to third parties made less than five years ago and gifts and donations to children (without that term) are added to the notional mass.
Thus:
Inheritance: 250,000.00
Less: debts: 50.000,00
Remains: 200.000,00
Add: donations niece last five years: 160.000
Fictitious mass: 360.000,00
Claim per disinherited child: 1/6 * 360,000.00 = 60,000.00 per person
The legitimate claim; imputation
With that, however, we are not there yet. There are still a few snags. Suppose the father has given the children 25,000.00 each in the past. That will still be deducted from the 60,000.00 and thus the legitimacy claim will be 60,000.00 - 25,000.00 = 35,000.00. Sometimes a child is not completely disinherited but only partially. In that case, what the child could have received according to the will is also deducted from the claim (that is not the case here; the children are totally disinherited). And so it can happen that a legatee is still left empty-handed.
Reduction and monetization
But now suppose that the legitimate claim is indeed 60,000.00 per child. How can they monetize that claim? That is the doctrine of abridgment. They have to go get the money, so to speak, from the heirs or beneficiaries of gifts. In this case, that's the niece. So she doesn't have that much left: 200,000.00 - 180,000.00 = 20,000.00. But all in all, she did receive 160,000.00 in the past and now another 20,000.00 from her generous uncle.
Varia
In principle, the legitimate portion must be invoked within five years of death. Assuming a child/legitimary receives an inheritance with only a trifle under the testator's will, he should think carefully about what to do. If he accepts the estate, he can no longer claim the legitimate portion and thus be worse off. If he rejects the estate he must immediately make his claim to the legitimate portion known to the other heirs, otherwise he forfeits his right. But in that case, what he had obtained as an heir is thus deducted from his legitimacy claim and he may be worse off. It will be clear that this decision must be taken cautiously. Furthermore, it is very important to know that a legitimee is not an heir. A child who rejects an estate of his parents for the purpose of subsequently invoking the legitimacy will ultimately be left with only a monetary claim that is often also provisionally unclaimed. In no case is he entitled to any assets of the estate.
This is just a bird's eye view tour of this subject on which books have been written about. Every case is different so tailored advice is needed. I will be happy to help you!
It is a common misconception that children cannot be disinherited. Under current law, in effect since January 1, 2003, they can. "Yes, but then you are still entitled to your child's share" is often objected to. And that too is not (entirely) true. The issue at stake here is that of the legitimate share or, to put it nicely, "the legitimate claim." How about that?
The basic premise of our society is that, in principle, everyone may do whatever he wishes with his money. He may also decide what happens to his assets when he dies. We call the latter: freedom of testament. However, the legislator has recognized that the position of two vulnerable people may be compromised: that of the spouse and that of the child (or children). Not infrequently, they are financially dependent on the deceased, and if it turns out that the deceased has given away everything (so to speak) to charity, they would be left totally destitute. Their future could be in jeopardy. Therefore, for the benefit of these individuals, the law sets limits on the freedom to testate. The position of the surviving spouse is discussed in another post. We focus now on the testator's children.
The testator is free to disinherit one or more of his children. And if the child accepts that ("I don't need anything from him anyway!") then that remains in place. But the child does not have to accept that; by law, a child of the testator is a legitimizer. And if the disinherited child is already deceased ("pre-deceased") at the time of the parent's own death, then his or her children, if any, are legitimizers by substitution.
The legitimacy fraction
The calculation of the final legitimacy claim is complex and follows a set of steps. We begin relatively easily: we determine the inheritance share. Suppose the testator does not leave behind a spouse (who is predeceased) but has three children. He has been arguing with these for a long time, and so he has stipulated in his will that everything goes to a niece. If there were no will, there would be three heirs: the children, one-third each. That 1/3 is the inheritance share. Step two, we calculate the legitimacy fraction. that is the inheritance divided by 2. That brings us to half of 1/3 is 1/6. For each child, there is a legitimate fractional share of 1/6.
The fictitious mass
The next question then is: 1/6 of what? The answer is not: the estate. The correct answer is: the fictitious mass. According to the law, the notional mass consists of the inheritance, from which certain debts are deducted (for example, those of the funeral), but certain gifts from the past are added back. The latter is for a reason. Imagine our testator anticipates that his children will invoke the legacy. He is very wealthy and gifts that dear niece a ton every year. By the time he dies, his wealth has shrunk quite a bit. Then the children would still be left empty-handed. Therefore, gifts to third parties made less than five years ago and gifts and donations to children (without that term) are added to the notional mass.
Thus:
Inheritance: 250,000.00
Less: debts: 50.000,00
Remains: 200.000,00
Add: donations niece last five years: 160.000
Fictitious mass: 360.000,00
Claim per disinherited child: 1/6 * 360,000.00 = 60,000.00 per person
The legitimate claim; imputation
With that, however, we are not there yet. There are still a few snags. Suppose the father has given the children 25,000.00 each in the past. That will still be deducted from the 60,000.00 and thus the legitimacy claim will be 60,000.00 - 25,000.00 = 35,000.00. Sometimes a child is not completely disinherited but only partially. In that case, what the child could have received according to the will is also deducted from the claim (that is not the case here; the children are totally disinherited). And so it can happen that a legatee is still left empty-handed.
Reduction and monetization
But now suppose that the legitimate claim is indeed 60,000.00 per child. How can they monetize that claim? That is the doctrine of abridgment. They have to go get the money, so to speak, from the heirs or beneficiaries of gifts. In this case, that's the niece. So she doesn't have that much left: 200,000.00 - 180,000.00 = 20,000.00. But all in all, she did receive 160,000.00 in the past and now another 20,000.00 from her generous uncle.
Varia
In principle, the legitimate portion must be invoked within five years of death. Assuming a child/legitimary receives an inheritance with only a trifle under the testator's will, he should think carefully about what to do. If he accepts the estate, he can no longer claim the legitimate portion and thus be worse off. If he rejects the estate he must immediately make his claim to the legitimate portion known to the other heirs, otherwise he forfeits his right. But in that case, what he had obtained as an heir is thus deducted from his legitimacy claim and he may be worse off. It will be clear that this decision must be taken cautiously. Furthermore, it is very important to know that a legitimee is not an heir. A child who rejects an estate of his parents for the purpose of subsequently invoking the legitimacy will ultimately be left with only a monetary claim that is often also provisionally unclaimed. In no case is he entitled to any assets of the estate.
This is just a bird's eye view tour of this subject on which books have been written about. Every case is different so tailored advice is needed. I will be happy to help you!