What Is Forced Heirship?
Can you disinherit your next of kin?
Forced heirship is a legal concept that's recognized at least to some extent in one state – Louisiana. It's far more common in European countries such as France, Germany, Italy, and Spain. Japan, Russia, and some Latin American countries also recognize forced heirship, and it's common in the Muslim religion.
What Is Forced Heirship?
A person is not free to dictate who inherits his estate under forced heirship laws, at least not entirely. He's prohibited from disinheriting certain kin, most commonly his spouse, his children, and his grandchildren. Some forced heirship laws include other relatives as well. They require that a deceased person's estate must pass to one or more blood relatives who are referred to as "protected heirs."
The term "forced heirship" is not used anywhere in the U.S. except Louisiana. This state has a law that prohibits disinheriting a child who is younger than age 24 or who is permanently disabled or incapacitated. Grandchildren are considered forced heirs if their parent died before the decedent, provided they are under age 24 or incapacitated at the time the decedent dies. These individuals are assured of receiving at least some share of the decedent's estate.
Louisiana's forced heirship law does not extend to spouses. It doesn't have to – the state has another law for them.
Forced Heirship vs. the Elective Share
Although only Louisiana recognizes forced heirship, virtually all other states have some legal means in place to ensure that a spouse cannot be disinherited. The exception is Georgia. And Georgia does have a law in place that ensures a surviving spouse a living allowance from the decedent's estate for a limited period.
The majority of states provide for elective shares in their laws. "Elective share" is a term used to describe the right of a surviving spouse to take a share of her deceased spouse's estate. She is free to either accept the terms of her spouse's will or "take against it" and accept a statutory share of his estate instead. For example, Joe's will might leave Sally $500. Joe's estate is worth $500,000, so Sally can either accept the $500 he left her or notify the court that she elects to receive a far more significant share of his estate instead. The exact share would depend on the state's laws, and they can vary, but it's often at least one-third of the entire estate.
Community Property States
Nine states following community property law, including Louisiana. Each spouse has an equal 50/50 ownership right to everything acquired during the marriage. A spouse has no right to leave the other's share of community property to anyone else in his estate plan because it's technically not his to give away. If Joe and Sally had lived in a community property state and their marital estate was worth $500,000, Sally would automatically get her $250,000 share.
However, Joe is free to leave his $250,000, as well as any separate property he acquired before the marriage, to anyone he likes.
Forced Heirship in Other Countries
Forced heirship laws vary widely among the countries that recognize them. In some, the deceased person cannot alter the forced heirship disposition of his estate in any way. In others, he can direct that a portion of his estate can pass outside of the forced heirship rules as long as a portion is left to protected heirs. Forced heirship can be avoided in some countries by establishing trusts or foreign corporations to own property.
NOTE: Laws frequently change around the world, and this information may not reflect the most recent changes. Please consult with an attorney in your jurisdiction for the most up-to-date advice. This article is not legal advice and is not a substitute for legal advice.