Forced heirship: how civil law countries override your will for local property
Knowledge Article · Inheritance & Estate Planning
Forced heirship: how civil law countries legally override your will
In France, Spain, Italy, Portugal, Germany, and most of the civil law world, you cannot freely give your estate to whoever you choose. A fixed portion is legally reserved for certain heirs — and your will cannot change this for local real estate.
Testamentary freedom — the right to leave your estate to whoever you wish — is a common law concept that does not exist in most of the world. In civil law jurisdictions (which cover most of continental Europe, Latin America, parts of Asia, and large parts of Africa), the law reserves a mandatory portion of the estate for specific “protected” heirs regardless of what the will says. This applies to assets in those jurisdictions regardless of where the deceased was domiciled or what nationality they held.
Principle 01 — The reserved shares by country
| Country | Reserved share | Who is protected | Freely distributable |
|---|---|---|---|
| France | 1/2 (1 child); 2/3 (2 children); 3/4 (3+ children) | Children, descendants | 1/2, 1/3, or 1/4 |
| Spain (mainland) | 2/3 total (1/3 estricta + 1/3 mejora) | Children, descendants | 1/3 (libre disposición) |
| Spain (Catalonia) | 1/4 | Children, descendants | 3/4 |
| Spain (Basque Country) | Minimal | Very limited | Near-total freedom |
| Italy | 1/2 (1 child); 2/3 (2+ children); 1/2 (spouse) | Children, spouse, parents | 1/2, 1/3, or 1/4 |
| Portugal | 1/2 to 2/3 (spouse + children together) | Spouse and children | 1/3 to 1/2 |
| Germany (Pflichtteil) | Half of intestate share — in cash | Children, spouse, parents | Depends on intestate share |
| Netherlands | 1/2 of intestate share | Children | Depends on intestate share |
| Belgium | 1/2 of estate for children as a group | Children | 1/2 |
| Japan | 1/2 (spouse + children); 1/3 (ascendants only) | Spouse, children, parents | 1/2 or 2/3 |
| Greece | 1/2 of intestate share | Children, spouse, parents | 1/2 |
| Brazil | 1/2 (herdeiros necessários) | Descendants, ascendants, spouse | 1/2 |
| Chile | 3/4 (50% forced heirs + 25% mejora) | Descendants, ascendants, spouse | 1/4 — most restrictive in Latin America |
Principle 02 — The lex situs rule: real estate always follows local law
The most important limitation in planning around forced heirship is lex situs: real property always follows the succession law of the country where it is located, regardless of the deceased’s domicile, nationality, or the law elected in their will.
A UK national living in France who makes an EU Succession Regulation art.22 election of UK law in their will removes French forced heirship for their UK assets and movable assets generally. But their French apartment still follows French succession law — the réserve héréditaire applies to French real estate regardless of the art.22 election.
Principle 03 — The EU Succession Regulation art.22 election
EU Succession Regulation 650/2012 allows EU nationals — and, post-Brexit, UK nationals in EU countries — to elect the law of their nationality to govern their succession. This is done by a specific clause in the will.
Benefits: removes the host country’s forced heirship for movable assets (bank accounts, shares, investment portfolios). Limits: lex situs overrides for immovable property. The election must be explicitly made — it is not automatic post-Brexit for UK nationals. Most UK expats in the EU who made their will before 2015 or after Brexit without updating it do not have this election.
Principle 04 — Italy’s azione di riduzione: the 10-year retroactive look-back
Italy adds a uniquely powerful mechanism to its forced heirship system: the azione di riduzione (action for reduction). Italian forced heirs can challenge lifetime gifts made up to 10 years before the deceased’s death that impaired their quota legittima. This retroactive claim applies to Italian-situs assets regardless of where the deceased was domiciled. Years of restructuring, trust planning, or gifting strategies can be partially unwound by Italian forced heirs — even after the estate has been administered and distributed.
The planning hierarchy for forced heirship: (1) Know which countries’ laws apply to which assets — lex situs governs real estate, elected law governs movables where EU Succession Reg applies. (2) Make the art.22 election in your will if you are an EU/UK national living in an EU state. (3) Do not rely on the election to cover real estate — it does not. (4) If you have Italian assets, be aware of the azione di riduzione risk on lifetime transfers.
Planning triggers — you should be reviewing this if…
- You own real estate in France, Spain, Italy, Portugal, Greece, Germany, or any other civil law jurisdiction
- Your will attempts to give assets to someone other than the forced heirs of the country where your assets are located
- You are a UK national living in an EU country and have not made an EU Succession Reg art.22 election in your will
- You have made lifetime gifts of assets in countries with a retroactive look-back period (Italy: 10 years)
- You have a German-resident child who you have disinherited or provided less than their Pflichtteil entitlement
Frequently Asked Questions
What is forced heirship?
Forced heirship is a legal rule in civil law countries (France, Spain, Italy, Portugal, Germany, Belgium, Netherlands, Japan, Brazil, Chile and many others) that reserves a fixed portion of the estate for certain heirs — typically children, spouses, and sometimes parents — regardless of what the deceased’s will says. The reserved portion (réserve héréditaire in France, quota legittima in Italy, legítima in Spain) cannot be given away by will. Only the remainder is freely distributable.
Can I avoid French forced heirship with a will?
For French real estate — no. French real property always follows French succession law under lex situs, regardless of the deceased’s nationality, domicile, or will. For movable assets (bank accounts, shares, investments) — possibly yes, if the deceased was an EU or UK national and made an explicit EU Succession Regulation art.22 election in their will electing their nationality’s succession law. UK nationals in France should explicitly elect UK law in their will, which removes French forced heirship for movables.
Does forced heirship apply to non-French nationals with French property?
Yes. French forced heirship applies to French real estate regardless of the deceased’s nationality. A US citizen, Australian national, or UK national who owns a French property cannot disinherit their children for that property — lex situs means French succession law governs French real estate, and the réserve héréditaire applies. The EU Succession Regulation art.22 election can remove French forced heirship for movable assets only.
What is the German Pflichtteil?
The Pflichtteil is the German forced heir’s right to claim half of their intestate share, payable in cash, from any estate. It is enforceable regardless of what the deceased’s will says and regardless of where the deceased was domiciled. If a German-resident child is excluded from a will or receives less than their Pflichtteil, they can demand the cash amount from the estate — levied against German-situs assets if necessary.
What is Italy’s azione di riduzione and how does it work?
The azione di riduzione (action for reduction) allows Italian forced heirs to challenge lifetime gifts made up to 10 years before the deceased’s death that impaired their quota legittima (forced share). If the deceased gave away Italian assets during their lifetime in a way that reduced what forced heirs would receive, those heirs can bring a court action to recover the shortfall — even after the estate has been distributed. This retroactive risk applies to Italian-situs assets regardless of where the deceased was domiciled.
Does the EU Succession Regulation help with forced heirship?
Partially. EU Succession Regulation 650/2012 art.22 allows EU nationals (and UK nationals post-Brexit, who can still make the election) to elect the succession law of their nationality in their will. Where UK or common law succession law is elected, this removes the host EU country’s forced heirship for movable assets. Critical limitation: lex situs means real estate always follows the succession law of the country where it is located — the art.22 election cannot override forced heirship for French real estate, Spanish real estate, or Italian real estate.
FAQs for educational purposes only. Not legal, tax or financial advice.
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