No other requirement concerns the courts and lawyers in inheritance law more than the forced share requirement. The right to a forced share results from the tension between the testator’s freedom to make a will and the next of kin’s statutory right of inheritance.
Testamentary freedom for the testator
For example, there are always reasons why parents deviate from the legal inheritance and disenfranchise some or all children in the will. In the case of a joint will between the spouses, this may have the simple reason that the children will only become final heirs after the death of the last deceased spouse. Then the children are only disinherited in relation to the first deceased spouse. However, the relationship between parents and children is often broken or simply no longer exists, so the parents decide to disinherit their children in the will.
The possibility of disinheriting close relatives who would be designated as heirs in the event of a change of law is ultimately due to the testator’s constitutionally protected property freedom and testamentary freedom. Each person should be free to decide who will inherit him or her. Just as everyone is free to decide on their property during their lifetime, this freedom should also exist when planning their own estate. The potential testator can therefore decide who will inherit him by means of a disposition mortis causa (will or inheritance contract). Inheriting a close relative is therefore completely legal.
Group of persons entitled to a compulsory portion
On the other hand, through the forced share requirement, the legislature protects particularly close relatives in the event of disinheritance. Descendants (children, grandchildren, great-grandchildren, etc.), parents and spouses of the deceased testator are entitled to a compulsory portion. However, more distant descendants (grandchildren, great-grandchildren, etc.) and parents are not entitled to a compulsory portion if a descendant who would exclude them in the event of a change of law can claim the compulsory portion or accept what is left to them. This is intended to avoid overlapping of the burden of the obligatory share, which would otherwise result from more distant descendants moving into the circle of those entitled to a compulsory share.
Minimum financial participation in the estate
With the right to a forced share, the legislature does not grant the aforementioned group of persons a real interest in the estate. The party entitled to compulsory ownership therefore does not become a proportional owner of the estate or individual book items. On the contrary, the compulsory joint beneficiary is awarded a payment claim according to the law of duty with half of his statutory share of the inheritance from the heir.
According to the jurisprudence of the Federal Constitutional Court, the right to a compulsory portion ensures that certain family members of the deceased have a minimal economic share in his or her estate, which is basically inalienable and independent of their needs. Even if the right to forced inheritance does not change the next of kin’s inheritance, it does give the dependent dependent the right to financial participation in the estate.
Information, valuation and payment
If, for example, a divorced father leaves behind a son and a daughter, and this father decides to designate the daughter as the sole heir through his will, the son is entitled to a compulsory share of half of his statutory share of inheritance. With two children, a divorced father would have a statutory inheritance share of 50% for each of the two children. In the example above, the son’s right to a forced share would therefore be 25%.
The son can therefore claim 25% of the regulated property value as payment for himself. However, the debtor is often unaware of the specific composition and size of the estate. Therefore, the legislator initially assigns the coercive right to information and valuation from the heir. The obligee can request the heir to submit a private or notarial list of the deceased’s estate. This list of estates must provide information about the estate’s assets and liabilities. Liabilities are deducted from assets. This results in the adjusted value of the estate, from which the person entitled to enforcement can then calculate his enforcement share according to his respective enforcement share quota.
If the adjusted property value in the example above after deducting the liabilities, i.e. the debt and inheritance obligations, is €100,000.00, the son would be entitled to a mandatory portion of €25,000.00.
If the estate consists entirely of bank assets, these assets can be easily quantified. If the estate contains immovable property, company shares or valuables, the value of which cannot be directly calculated, the obligor is also entitled to an assessment from the heirs. He can ask the heir to submit an expert report so that he can assess the value accordingly.
Mandatory portion supplement requirement
In addition, the person entitled to enforcement can also ask the heir for information about what gifts the testator has given. As a rule, donations from the past ten years play a role. In the case of property donations, where the donor has reserved rights of use or housing, there may also be claims for gifts that are more than ten years old.
For those entitled to a forced share, it is decisive for the calculation of their claim to a supplementary forced share, when and with what amount the gift is given. The specific calculation of the entitlement is then again based on his compulsory share quota.
Fulfillment of the compulsory share requirement
The payment of the compulsory portion is not, as is often mistakenly assumed, “automatically” arranged by the probate court or the respective heir. On the other hand, the person who is entitled to compulsory inheritance is responsible for asserting his claim to compulsory inheritance against the heir. Legal assistance should be sought when presenting and enforcing the claim for a forced share, as the right to a forced share and the amount of the claim for a forced share must be checked very carefully in each individual case.