Forced Heirship: What Executors Need to Know About Mandatory Inheritance Laws

The Rule That Overrides a Will

In the US, UK, Canada, and Australia, you can generally leave your estate to whoever you choose. That principle — testamentary freedom — is so deeply embedded in common law that most English-speaking executors never consider the alternative.

But in most of Continental Europe, Latin America, the Middle East, and much of Asia, the law takes a fundamentally different position. Forced heirship reserves a mandatory share of the estate for certain close relatives, regardless of what the will says. A parent cannot fully disinherit a child. A spouse cannot be cut out entirely. The law draws a line around a portion of the estate and hands it to the "reserved heirs" whether the deceased wanted that or not.

If you are settling an estate that includes assets in a civil law country, forced heirship is not an edge case. It is the default.

How Reserved Portions Work by Country

The reserved share varies by country, by the number of children, and sometimes by whether a surviving spouse exists:

France. The réserve héréditaire reserves half the estate for one child, two-thirds for two children, and three-quarters for three or more. The testator can freely dispose of only the remaining fraction (the quotité disponible). Under Article 913 of the French Civil Code — updated in 2021 — if the deceased or at least one child is a national of, or habitually resident in, an EU member state, French notaries must contact the children to offer them the option to claim their reserved portion, even when the will elected a foreign governing law. If they choose to do so, a compensation right may be exercised against French-situs assets.

Germany. The Pflichtteil gives forced heirs a cash claim equal to half of their intestate share. Unlike France, German forced heirship does not transfer actual assets — the heir receives a monetary payment. But the claim is enforceable and cannot be eliminated by choosing a foreign law to govern the estate. In a landmark 2022 decision (IV ZR 110/21), the German Federal Court of Justice held that completely disinheriting a child violated German public policy, even when the testator had validly elected English law under Brussels IV.

Spain. The legítima reserves one-third of the estate outright for the children (legítima estricta), with another third available for distribution among the children at the testator's discretion (mejora). The final third is freely disposable. Each autonomous community has its own variations — Catalonia, the Basque Country, and Navarre follow different rules from the national default.

Italy. Italian law reserves half the estate for one child and two-thirds for two or more children when they inherit without a spouse; a surviving spouse alone is reserved half, and the shares differ when a spouse and children inherit together. The reserved portion is a real right — heirs can claim specific assets, not just a cash payment.

What This Means for Cross-Border Estates

If the deceased owned a villa in Provence and left everything to a second spouse, the children from a first marriage can claim their reserved portion of that French property. The will does not control the outcome.

This collision between common law testamentary freedom and civil law forced heirship is the single most litigated area in cross-border succession. Families discover that a carefully drafted US or UK will — one that distributes assets exactly as the deceased intended — may be partially unenforceable when local forced heirship rules apply and the will does not resolve the conflict.

The practical consequences are severe. An executor who distributes assets according to a will that ignores forced heirship rights faces personal liability. Reserved heirs who were not notified can bring claims years after the initial distribution, reopening what the family thought was a settled estate.

Can Brussels IV Protect You?

The EU Succession Regulation (Brussels IV), which took effect in 2015, allows a testator to choose the law of their nationality to govern their worldwide estate. An American living in Germany can elect US law in their will, theoretically bypassing German forced heirship.

In practice, the protection is less absolute than it appears:

• Germany's public policy override. German courts have ruled that the complete disinheritance of a child violates ordre public. The nationality election stands, but the child still gets their Pflichtteil.

• France's compensation right. If the deceased or at least one child is a national of, or habitually resident in, an EU member state, French law allows children to choose whether to seek compensation from French-situs assets when the chosen foreign law leaves them short of their reserved share. The election works, but French property may still be exposed.

• Denmark and Ireland opted out. Brussels IV does not apply in these two EU member states.

• The election must be in the will. If the deceased did not include an explicit choice-of-law clause, the default rule applies: the law of their last habitual residence governs the entire estate. An American who retired to Spain without updating their will may find their entire worldwide estate subject to Spanish forced heirship rules.

What Executors Should Do

If the estate includes assets in any civil law jurisdiction, do not assume the will controls the outcome. Take these steps early:

1. Identify which countries' laws apply. Common-law systems often apply the law where real property is located and the law of the deceased's last domicile to movable assets. Many civil-law systems instead apply one law to the whole succession, often based on habitual residence or nationality.

2. Consult local counsel in each jurisdiction. A general estate attorney in the US is unlikely to understand the mechanics of the French réserve or the German Pflichtteil. You need a local specialist.

3. Notify all potential forced heirs. Even if the will does not mention them. Failure to notify creates grounds for a later challenge.

4. Do not distribute assets prematurely. Until the forced heirship exposure is assessed, any distribution carries personal liability risk for the executor.

The International Estate toolkit includes a forced heirship exposure calculator and country-by-country guide to reserved portions, so you can assess the impact before engaging expensive foreign counsel for every jurisdiction.