Concept
Forced heirship is a rule under which part of an estate is reserved for a defined circle of close relatives regardless of the testator's wishes. A will cannot bypass them: the court cuts back dispositions that breach the protected share, and the heir receives what is due in money or in property. It is a direct limit on testamentary freedom in favour of the family.
This is the watershed between two legal families. Civil law — France, Spain, Italy, Germany, Russia — reserves a share for the family. Common law (England, the United States, most offshore centres) starts from testamentary freedom: the testator may leave property to anyone, and close relatives are protected only by narrow claims for reasonable provision.
Where the Reserve Comes From
The idea of a protected share comes from Roman law: a testator could not entirely disinherit his closest descendants, who were owed the legitima portio. Medieval Europe also knew the opposite custom — the majorat and primogeniture handed the estate to the eldest son so that the family holding would not fragment. The French Revolution saw injustice in that, and in 1804 the Napoleonic Code fixed the réserve — a mandatory equal share for all children. Continental Europe, and Russia after it, inherited this logic; England kept full testamentary freedom, and from there it passed to the United States and the offshore centres.
The reserve by country
The reserve is built from four parameters, and they do not move together: who is protected, how much they take, whether lifetime gifts are pulled back into the calculation, and whether the protected heir can give the claim up before the testator dies. The table compares twelve jurisdictions on those axes; the common-law entries are there because "no reserve" is a position on the same scale, not an absence of one.
| Jurisdiction | Protected circle | Size of the reserve | Clawback of lifetime gifts | Waiver before death | Conflict with an offshore firewall |
|---|---|---|---|---|---|
| France | Children; the spouse only where there are no descendants | 1/2 with one child, 2/3 with two, 3/4 with three or more (Art. 913 Code civil); spouse 1/4 under Art. 914-1 | Yes, with no time limit: all gifts are reported and reduced (action en réduction, Arts. 920–930) | Yes — RAAR under Arts. 929–930-5, by a separate deed before two notaries | Sharp, but only within France: for successions opened since 1 November 2021, where the deceased or a child is an EU national or habitually resident in the EU and the foreign law governing the succession gives children no reserve, each child may make a compensatory levy (prélèvement compensatoire) on property located in France at the date of death (Art. 913); the trigger is the law of the succession, not the law of the trust |
| Spain | Descendants; ascendants absent descendants; spouse by usufruct | Two-thirds of the estate for descendants under the general Civil Code (1/3 estricta + 1/3 mejora) — but the figure is regional: Catalonia 1/4 as a claim to value, payable in money or in estate assets, Navarre symbolic, Basque Country 1/3 collective, and Aragon, Galicia and the Balearics each differ | Yes: inofficious gifts are reduced (Arts. 636, 654) | No — any renunciation of a future legítima between the debtor and his forced heirs is void (Art. 816) | Trust looked through; the legítima is applied to the assets |
| Italy | Spouse, children, and parents absent children | One child 1/2, two or more 2/3; spouse alone 1/2, with one child 1/3 each, with several children 1/4 | Yes: azione di riduzione reaches gifts as well as bequests (Art. 557) | No before death (Art. 458 bans succession pacts); the consensual exception is the patto di famiglia for a business (Art. 768-bis) | Trust interno recognised under the Hague Convention, but Art. 15 preserves the legittima |
| Germany | Descendants, spouse, parents | Half the value of the statutory share, as a money claim (§ 2303 BGB) | Yes, tapered: a gift counts in full in the year before death and one tenth less for each further year, dropping out after ten (§ 2325) | Yes — Pflichtteilsverzicht under § 2346(2), notarially authenticated (§ 2348), concluded by the testator in person (§ 2347) | No recognition of the trust at all; income is attributed under § 15 AStG |
| Switzerland | Descendants and the spouse or registered partner; the parents' reserve was abolished | Half of the statutory succession rights (Art. 471 ZGB), in force since 1 January 2023 — down from three quarters for descendants under the old law | Yes: gifts freely revocable or made in the five years before death, and alienations obviously intended to circumvent the reserve, are subject to abatement (Art. 527) | Yes — an inheritance renunciation contract with or without consideration (Art. 495) | Hague party since 2007; the trust is recognised, the abatement claim survives it |
| Portugal | Spouse, descendants, ascendants | 2/3 where a spouse and children compete; one child alone 1/2, two or more 2/3; spouse alone 1/2 (Arts. 2157–2161) | Yes: inofficious gifts are reduced, and lifetime gifts are abated last in the statutory order (Arts. 2168–2173) | No — "não é permitida em vida do autor da sucessão a renúncia ao direito de reduzir as liberalidades" (Art. 2170); spouses may renounce each other's shares in a prenup (Lei 48/2018) | No domestic trust outside the Madeira free zone; foreign trusts looked through |
| Cyprus | Spouse, children and their descendants, parents | Expressed as a cap on the disposable portion: 1/4 where a child or a child's descendant survives, with or without a spouse; 1/2 with a spouse or a parent but no descendants; the whole estate if none of them survive (Cap. 195 s. 41) | Testamentary dispositions in excess are cut back proportionately (s. 41(2)) | Not provided for | Strongest of the group: the International Trusts Law 69(I)/1992 as amended in 2012 gives a firewall against foreign succession claims |
| Russia | Minor and disabled children, disabled spouse and parents, disabled dependants | At least half of the intestate share (Art. 1149 Civil Code); the pre-2002 figure was two thirds | No clawback of gifts; the share is drawn first from untestated property, and a court may reduce or refuse it over housing or working tools the protected heir never used | No; an inheritance contract operates only so far as it does not conflict with Art. 1149 (Art. 1140.1) | The trust is not recognised; it is a structure without legal personality for CFC purposes |
| Kazakhstan | Minor and disabled children, disabled spouse and parents | At least half of the intestate share (Art. 1069 Civil Code); everything the heir receives by will or by law counts towards it | Not provided for | Not provided for | Not recognised in general law; AIFC trusts operate inside the centre only |
| England and Wales | None by right; spouse, children and dependants may claim | No fixed share — the court awards reasonable financial provision under the 1975 Act | Indirect: where the deceased, less than six years before death, made a disposition without full value intending to defeat a claim, the court may order the recipient to provide money or property towards the award (s. 10); s. 11 does the same for contracts to leave property by will | Not applicable; there is no share to waive | None — the trust is a domestic institution |
| United States | Surviving spouse; children only in Louisiana | Elective share of roughly one third in most states; Louisiana reserves 1/4 for one forced heir and 1/2 for two or more, and only for children under 24 or lacking capacity | Augmented-estate rules in the elective-share states pull back lifetime transfers | Yes — the elective share is routinely waived in a prenuptial or postnuptial agreement | None; a trust is domestic, and the DAPT states add their own creditor firewall |
| Israel | None; the spouse, children and parents may claim maintenance | No fixed share — maintenance from the estate under ss. 56–65 of the Succession Law 1965 | Not applicable | Not applicable | None; the domestic Trust Law 1979 recognises the institution |
The table sorts the jurisdictions into three groups that behave differently under planning. The first is the clawback group — France, Italy, Spain, Portugal, Switzerland, Germany — where a gift or a settlement into a structure does not end the matter: the value comes back into the reserve calculation, and the only difference is the window. Germany's ten-year taper and the Swiss five-year rule reward planning done early; the French action en réduction has no window at all, so time never cures the transfer.
The second is the contractual group. Germany, Switzerland and France let the reserve be given up during the testator's lifetime — by a Pflichtteilsverzicht, an Erbverzicht or a RAAR — which turns a statutory limit into something negotiable with the family. Spain, Portugal, Italy and Russia refuse: a renunciation of a future reserve is void, and the only consensual route is a specific institution such as the Italian patto di famiglia for a business.
The third is the no-reserve group — England and Wales, most US states, Israel, and the UAE for non-Muslims who make a will. Here the constraint is not a share but a claim: an English court can award provision to a dependant and reach back six years over dispositions made to defeat it, and an American spouse holds an elective share unless it was waived in a marital agreement. For a national of one of these states, choosing that law under Art. 22 of Regulation 650/2012 — which allows only the law of a nationality held at the time of the choice or at death — is what actually removes a continental reserve, subject to the three counter-mechanisms discussed below.
UAE and Sharia
In the UAE, family and succession matters for Muslims fall by default under Sharia, with fixed shares. For non-Muslims the picture has changed: Federal Decree-Law No. 41 of 2022 on civil personal status, in force since 1 February 2023, removed their succession from the automatic operation of Sharia. By default the spouse receives half and the rest is divided equally among the children regardless of gender; a will under one's home-country law can also be registered through the DIFC or ADGM registries. Real estate in the emirates remains a sensitive area and requires separate work.
England, the US and Testamentary Freedom
In common law the testator is in principle free to leave property to anyone, but absolute freedom does not exist here either. In England the Inheritance (Provision for Family and Dependants) Act 1975 lets a spouse, children and dependants ask the court for reasonable provision out of the estate if the will left them with nothing. In the United States testamentary freedom is combined with the elective share — the surviving spouse's right to a part of the estate, usually around a third; Louisiana, with its French roots, still recognises forced heirship for children under 24 and those lacking capacity. Scotland stands apart: legal rights give the spouse and children a share in movable property.
Brussels IV: Choice of Law in Europe
Since 17 August 2015 the EU has applied Regulation 650/2012 (Brussels IV). By default the whole estate is governed by the law of the testator's last habitual residence, but a will may choose the law of one's nationality (professio juris). A British national living in France may choose nationality law, but the applicable territorial legal system and any remaining protection of heirs must also be determined. The Regulation binds almost the entire EU except Denmark and Ireland. It does not close the subject completely: France answered with the droit de prélèvement compensatoire — for successions opened since 1 November 2021, where the deceased or at least one child is an EU national or habitually resident in the EU and the foreign law governing the succession gives children no reserve, each child may take from property located in France at the date of death what restores the reserve French law would give him (Art. 913 of the Civil Code, as amended by Law No. 2021-1109 of 24 August 2021) — and the compatibility of that mechanism with the Regulation is still disputed. The text of the Regulation is published on EUR-Lex.
How This Is Handled in Practice
The planning tools are a choice of applicable law where it is allowed, trusts and private foundations, lifetime gifts, life insurance and matrimonial-property agreements. All of them work within the law: the task is to align the distribution in advance with the mandatory rules of every country whose law could reach the estate. Shifting the reserve after the fact almost never works — planning is done years ahead.
In the EU the statutory share can sometimes be shifted by choosing the law of your nationality — see Applicable Law and Brussels IV.
Waiving the Reserve by Contract
Where the law allows it, the cleanest answer to a reserve is not a structure but an agreement with the protected heir, made during the testator's lifetime. Three systems set the pattern, and the difference between them is formal rather than conceptual.
Germany: Pflichtteilsverzicht. Under § 2346 BGB a testator's relatives and spouse may by contract with him waive their statutory right of succession, and paragraph 2 offers the narrow version: the waiver may be limited to the right to the reserved share alone, leaving intestate succession untouched. The form is rigid — § 2348 requires notarial authentication and § 2347 requires the testator to conclude the contract in person, with no power to act through a representative, though the waiving party may have one. It is not irreversible: § 2351 allows cancellation by a counter-contract in the same form.
France: renonciation anticipée à l'action en réduction. Introduced by Law No. 2006-728 of 23 June 2006 and sitting in Arts. 929–930-5 of the Civil Code, the RAAR lets a presumptive reserved heir waive in advance the action to reduce gifts in a succession not yet opened; it binds him only from the day the future testator accepts it. The scope is flexible — the whole reserve, part of it, or a specific asset — but the beneficiary must be named. The form under Art. 930 is exceptional: a separate special authentic deed received by two notaries, one appointed by the president of the chamber of notaries, with each renouncing party signing separately in the presence of the notaries alone. Under Art. 930-1 the waiver is not a gratuitous disposition and is therefore not taxed as a gift.
Switzerland: Erbverzicht. Art. 495 ZGB allows an inheritance renunciation contract with or without valuable consideration; the renouncing party is not treated as an heir on succession and, unless the contract says otherwise, the renunciation extends to that party's own issue.
Where it cannot be done. Spain voids any renunciation or settlement over a future legítima (Art. 816 CC), Portugal bans a lifetime waiver of the right to reduce gifts (Art. 2170 CC), Italy prohibits succession pacts outright (Art. 458), and Russia treats the reserve under Art. 1149 as beyond the reach of an inheritance contract (Art. 1140.1). In those systems the negotiation happens inside a named institution instead — the Italian patto di famiglia, the Portuguese spousal renunciation in a prenup — or not at all.
The form determines whether the waiver can travel inside the family's other paperwork. The German construction has no formal obstacle to sitting in a general package of family arrangements; the French one rules it out, because the deed under Art. 930 must be separate and special and cannot be placed in the text of a contrat de mariage. The second constraint is conflictual: a waiver removes the reserve given by the law applicable to the succession, and that law is not fixed by where the contract was signed. A German waiver signed by a family that then settles in France without a choice of law risks meeting a reserve other than the one waived, so the waiver is signed together with a choice of law on both the succession and the matrimonial axis — the seam is mapped in the family cluster.
Trusts, Foundations and Firewall
Moving assets into a trust or private foundation during one's lifetime takes them out of the estate — formally the structure becomes the owner. Protection against the statutory share is built on this, but it does not always work. France and Italy apply clawback (réduction): lifetime gifts and contributions to trusts are pulled back into the reserve calculation. In response, offshore centres passed firewall laws — the Trusts (Jersey) Law 1984, and equivalents in Guernsey, the BVI, the Cayman Islands and Liechtenstein, expressly cut foreign succession claims off from local trusts and foundations. A conflict arises: one country's reserve against another's firewall, and the outcome depends on where the assets sit and where the litigation has to happen.
The statutory share cannot be 'cancelled' at the last moment: it is assessed under the applicable succession law, with relevant exceptions and local protective rules checked separately. A working strategy is put together in advance — a choice of applicable law, trusts and foundations in firewall jurisdictions, insurance and lifetime gifts adjusted for clawback.
Q/A
Can a will exclude every close relative from the estate?
Not always. The applicable succession law decides: for example, Article 1149 of the Russian Civil Code preserves at least half of the intestate share for minor or disabled children, a disabled spouse or parents, and certain dependants. Another country may protect a different group or reserve.
Does choosing the law of nationality remove forced heirship across the EU?
No. Regulation (EU) No 650/2012 permits a choice of the law of nationality for the succession as a whole, but the mechanism operates through the conflict rules of participating states and retains a public-policy exception. Denmark and Ireland do not participate, so local analysis remains necessary.
Is foreign real estate always inherited under the law of its location?
No. In states participating in Regulation (EU) No 650/2012, the law identified by the Regulation normally governs the succession as a whole, including immovable property. Local property rights, land-register rules and registration formalities remain separate and must not be confused with succession law.
Does a lifetime gift or trust automatically defeat forced-heirship rights?
No. The applicable succession law may require a gift to be restored or accounted for when beneficiaries’ shares are calculated; the EU Succession Regulation expressly leaves that question to the law governing the succession. A trust also raises its own governing-law, asset-location and enforcement issues.
Does a European Certificate of Succession determine reserved shares?
No. The certificate proves an already established status or powers of an heir, legatee, executor or administrator for use in another participating state. The applicable succession law determines who inherits and in what shares; the certificate is evidence and does not replace that legal analysis.
Which countries let a child sign away the reserve during my lifetime?
Germany, France and Switzerland. Germany allows a waiver limited to the reserved share alone under § 2346(2) BGB, notarially authenticated and concluded by the testator in person; France allows the RAAR under Arts. 929–930-5 of the Civil Code, by a separate deed before two notaries with the beneficiary named; Switzerland allows an inheritance renunciation contract under Art. 495 ZGB. Spain, Portugal, Italy and Russia treat such a waiver as void, so there the reserve is handled through gifts inside the clawback window, an insurance wrapper, or a named institution such as the patto di famiglia.
Is a gift made years ago safe from the reserve?
Only where the law puts a window on it. Germany tapers a gift out over ten years (§ 2325 BGB) and Switzerland reaches gifts made in the five years before death plus anything freely revocable or obviously aimed at circumventing the reserve (Art. 527 ZGB). France reports and reduces gifts with no time limit at all, and Spain, Portugal and Italy reduce inofficious gifts whenever they were made. The planning consequence is that the same transfer is final in Munich, recoverable in Paris, and depends on the date in Zurich.