You sometimes hear it said that you cannot disinherit your own children. While you cannot deprive children of all their rights, you can disinherit children. However, a child is entitled to a legitimate portion. When a child is predeceased, his or her eventual children have a legitimate portion in their grandparent's estate.
The legitimate portion is a claim in money equal to half the value of what the child would have received if no will had been made. If someone dies without a spouse but with three children, the legitimate portion is 1/6th (half of 1/3rd).
If it were left at that, prior to your death you could gift away all or a large portion. For this reason, to calculate the legitimate portion, all gifts must be added to the estate. Thus, in the case of an estate of 100, while gifts of 200 were made during your lifetime, the legacy in the previous example is 50 (1/6th of 300).
To protect a surviving spouse, registered partner or partner with whom there is a notarised cohabitation agreement, it can be stipulated in a will that the legitimate portion is only claimable upon the death of that spouse or partner.
The legitimate portion must be claimed within five years of death. After that, the right expires.
For more information on limiting children's rights or claiming the legitimate portion, please contact us. We will be happy to advise you.
