What are forced heirship rules

Forced heirship rules refer to a set of laws enforced by a country which puts into effect “partible inheritance” on a deceased’s property. Forced heirship rules usually command that the property of the deceased is divided into two main sections. The first section of the estate is transferred to the survivors of the departed, while the second section can be distributed in compliance with the person’s will.

Forced heirship rules explained

Forced heirship rules are usually adopted only by countries that utilize the Civil Law legal system. Under forced heirship, individuals do not have the freedom to determine how their estate is going to be divided upon their death and to whom.  This is also referred to as “no freedom of testation”. Jurisdictions that employ Common Law legal system do not recognize forced heirship rules; nevertheless, the presence of surviving spouses may impact on the way that the estate is distributed.

Even though forced heirship rules do not take into account the desires of the departed, as they divide the property according to forced heirship rules, there is still an amount of the property which is protected by the deceased’s will. The amount of the estate that is distributed according to forced heirship rules is referred to as “forced estate” and the heirs of this estate are known as “forced heirs”.

Forced heirship rules are highly limiting with regards to the freedom given to an individual to determine how their property will be divided upon death. This is one of the fundamental reasons for forming an offshore trust in a jurisdiction which does not apply forced heirship rules. Offshore trusts permit the owner of the trust to arrange their estate according to their own wishes.