Disinheritance occurs if you exclude someone who is an heir by law from being an heir by will. You can do this explicitly by stipulating that a certain person is not an heir. But also by appointing someone else as heir.
Legitimate portion
Although many people think you cannot disinherit children, this is indeed possible. A disinherited child is entitled to a legitimate portion. The child has to claim it within five years after the death of the parent who disinherited the child. If an appeal is not made in time, for example because the child does not know that a parent has died, the right lapses. The legitimate portion is a claim in money equal to half of what the child would have received if no will had been made. The legitimate portion is calculated by adding donations made in the past to the balance of the estate. If a lot has been donated, it may mean that part of the value of those donations has to be paid to the child claiming the legacy. Incidentally, donations made to that child may be deducted from the legacy. Before 2003, a disinherited child became an heir if he invoked his legitimate rights. Therefore, in old wills, you regularly see that a child becomes an heir for his legitimate estate, is put in the legitimate estate or the inheritance share is limited to the legal inheritance share. Such a provision often results in the child being an heir and usually also for a larger part than the current legacy. So if you really want the child in question to receive as little as possible, it is wise to amend such an old will or make a will excluding the child as an heir.
Substitution
Since a disinheritance involves the child's children taking the child's place, it may also be important to disinherit these grandchildren as well.
Rights of spouse
Even with married couples, excluding them as heirs does not automatically mean that the surviving spouse gets nothing. The spouse has no legitimate portion but is entitled to:
- the continued use and occupancy of the home for six months;
- the lifetime right of usufruct of the home and contents;
- possibly a care usufruct of (part of) the rest of the estate.
For more information on disinheritance, legitimate portion and care usufruct, please contact us. We will be happy to help.
