Disinheritance, i.e. how to deprive an heir of the right to a compulsory portion and do so effectively

I have been unjustly disinherited – what should I do?

What does it mean to disinherit someone? There is a high likelihood that you may misunderstand this concept. Disinheriting close family members has a specific legal meaning in inheritance law, different from its colloquial understanding. What, then, does it mean? What consequences does it entail? And how can an heir be disinherited? You will find the answers in this article.

What is disinheritance? Deprivation of the right to a compulsory portion

Although the term “disinheritance” is commonly understood in various ways, in inheritance law it always means deprivation of the right to a compulsory portion.

As a reminder, in principle, as a testator you may freely decide what will happen to your estate after your death. The exception is that certain persons—specifically your closest family—are granted additional protection in the form of a compulsory portion.

This means that such heirs, even if omitted from the will, will receive an estate of a specified value—typically half of the share they would have received under statutory succession.

Consequently, often against your will, a substantial part of the estate may be transferred to them. This raises the question of whether anything can be done in such a situation.

In certain cases, yes. The testator may, by will, also deprive such a person of the right to a compulsory portion. This is precisely what disinheritance means in inheritance law. However, disinheritance is permitted only if specific conditions are met. This means that not every attempt to deprive someone entitled to a compulsory portion will be effective.

How to effectively disinherit an heir?

In order to disinherit someone, four conditions must be met:

The disinherited person must be entitled to a compulsory portion;
Disinheritance may be effected exclusively by will;
The testator may disinherit a person entitled to a compulsory portion only on one of the three grounds listed in Article 1008 of the Civil Code;
The testator must indicate in the will not only the legal ground (premise) for disinheritance, but also justify this decision.

Who may be disinherited – the circle of persons entitled to a compulsory portion

Since disinheritance means deprivation of the right to a compulsory portion, the conclusion is straightforward: you may disinherit only those persons who are legally entitled to such a portion. These include:

Descendants;
A spouse;
Parents.

The matter is, however, somewhat more complex, as not each of these persons will always be entitled to claim a compulsory portion. It also depends on whether, in the absence of a will (i.e. if statutory succession applied), that person would inherit. In practice, this means:

Your spouse will always be entitled to a compulsory portion;
As regards descendants, your children are first in line to the compulsory portion. Only if a child is unable or unwilling to inherit do that child’s own children (your grandchildren) inherit instead. In such a case, they are entitled to the compulsory portion;
Your parents may claim a compulsory portion only if you have no descendants, or none of them is able or willing to inherit.

How to disinherit in a will?

Disinheritance may only be made in a will, and the will must be valid. Therefore, if you prepare a handwritten will, you must ensure that all statutory requirements are met. If you choose to prepare a will with the assistance of a notary, the notary will ensure compliance with all formal requirements.

If you want your family to inherit in accordance with statutory rules, but with the exclusion of one particular person, it is sufficient to draw up a so-called negative will. This is a type of will in which you merely indicate which person is to be excluded from inheritance and the compulsory portion, and for what reasons.

On what grounds may disinheritance be made?

Disinheritance is an exception to the general rule of protecting close relatives through the compulsory portion. Therefore, deprivation of this right is reserved for exceptional cases—those in which claiming a compulsory portion would commonly be perceived as grossly unjust. Pursuant to Article 1008 of the Civil Code, there are only three such situations. You may disinherit a person entitled to a compulsory portion if that person:

Contrary to the testator’s will, persistently acts in a manner contrary to the principles of social coexistence—for example, by becoming addicted to drugs, engaging in gambling, refusing to work despite being able to do so, where such conduct is persistent and contrary to the testator’s will;
Has committed, against the testator or a person close to the testator, an intentional offence against life, health or liberty, or a gross insult to honour—this does not concern any offence, but only those within specific categories, such as assault or abuse;
Persistently fails to fulfil family obligations towards the testator—by not maintaining contact, failing to meet maintenance obligations, or not providing support when it was needed due to the testator’s state of health.

What if none of these grounds applies to the person you wish to disinherit? In that case, you cannot deprive them of their right to a compulsory portion, even if you personally consider another reason to fully justify such a decision.

How to justify disinheritance?

Merely indicating one of the above grounds for disinheritance is insufficient. If that were enough, anyone could easily deprive family members of the right to a compulsory portion, even if the stated ground had no connection with reality.

Therefore, for the deprivation of the compulsory portion to be effective, you must not only state the legal basis for disinheritance, but also justify it. For example, you may indicate that you are disinheriting your son due to persistent failure to fulfil family obligations, consisting in having no contact with you for ten years and limiting communication to sending holiday greetings by text message. Alternatively, if the disinheritance is related to the commission of an offence against you (e.g. assault), you may indicate in the will the reference number of the criminal conviction.

In short, if you wish to disinherit someone, you must include in the will not only the information as to the legal ground, but also the reasons why you have decided to deprive a close family member of the right to a compulsory portion.

I have been unjustly disinherited – what should I do?

Perhaps you are reading this article not because you wish to disinherit someone, but because you yourself have been disinherited unjustly. The question then arises whether anything can be done. There are several possible courses of action: from challenging the will itself, through invoking defects of declaration of intent, to challenging the disinheritance as such.

First, verify whether the will is valid. You will likely not be able to assess this on your own, but you can seek assistance from an experienced inheritance lawyer. If the will contains defects, it may be worth applying for a declaration of its invalidity.

Moreover, the testator may have drawn up the will without full awareness or under the influence of threats from another person. In such situations, the will may also be invalidated. Additionally, a person who threatened the testator and thereby influenced the content of the will may be declared by the court unworthy of inheritance.

If, however, the will is valid and was made freely and with full awareness, the issue of the grounds for disinheritance remains. In court proceedings, you may present evidence showing that the stated ground for disinheritance was untrue.

In some cases, the reasons are entirely untrue. In others, they partially correspond to the statutory ground under Article 1008, but not sufficiently—for example, the testator claims persistent conduct contrary to the principles of social coexistence and against the testator’s will, whereas in fact the conduct was a one-time incident. This means the statutory condition for disinheritance has not been met.

You may also attempt to demonstrate that the testator forgave you. Forgiveness renders disinheritance ineffective. The wrongdoing is forgiven, and the disinheritance is effectively “erased,” even if the testator did not amend the will after granting forgiveness.

Accordingly, such cases are not lost in advance. They do, however, require experience, knowledge of the law, and the presentation of solid evidence. Therefore, if you wish to challenge disinheritance, it is advisable to seek assistance from a lawyer.

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