The concept of Forced Heirship comprises a critical component of succession in civil law jurisdictions.
Forced Heirship is a provision of the law stipulating how a person may bequeath his or her assets to another person after his or her death. Also, it gives the suvivors shares of the estate of the deceased. Different laws dictate how assets are to pass to relatives at death in various countries and, sometimes, states.
Black’s Law Dictionary defines Forced Heirship as:
“Those persons whom the testator or donor cannot deprive of the portion of his estate reserved for them by law, except in cases where he has just cause to disinherit them.”
Forced heirship still occurs under Sharia law and also in many civil law countries where the concept of trust is not recognized.
Forced heirship laws dictate the limits and discretion of the testator to distribute assets under a will upon death. Forced heirship laws are most prevalent in civil law jurisdictions and Islamic countries. Some of these countries include France, Saudi Arabia, and Japan.
In the United States, Louisiana acknowledges Forced Heirship in certain instances. Under Louisiana law, qualifying dependents of the deceased are entitled to a portion of the property at the time of death, but life insurance policies and retirement are excluded. If a qualifying child dies before the deceased, that child’s children may become forced heirs of their grandfather or grandmother.
The advocates of Forced Heirship argue that it’s reasonable for testators be required to make provision for their dependents. Their reason being that it’s immoral for a decadent’s will to be indiscriminate, that it could leave a dependent destitute.
Critics suggest that there is a great difference between these wills, that at a minimum a testator should provide sufficient support for dependents. This includes prohibiting the testator from distributing the estate or a proportion of the estate to any female children, or younger male children.
The critics grapple that certain jurisdictions cannot force the distribution of a deceased persons assets or force them to distribute these assets in any way other than their own. Many times, wealthy individuals will circumvent Forced Heirship laws by transferring assets into trusts maintained and governed by laws other than their own country.
