Legal Definitions - forced portion

The term forced portion, also known as legitime or forced heirship, refers to a specific part of a deceased person's estate that, by law, must be reserved for certain designated heirs, typically children or a surviving spouse. This legal concept is primarily found in civil law jurisdictions, which differ from common law systems (like most of the United States or the United Kingdom) where individuals generally have more freedom to decide how their property is distributed through a will. In systems with a forced portion, a person cannot completely disinherit these specific heirs, as a certain percentage of the estate is legally protected for them, regardless of the deceased's wishes expressed in a will.

Here are some examples to illustrate the concept of a forced portion:

• Example 1: Disinheriting a Child in France

  Imagine a wealthy individual living in France, a country with a civil law system, who writes a will stating that their entire estate should go to a specific charity, explicitly excluding their only child. Under French law, the child is considered a "forced heir" and is entitled to a "forced portion" of the estate. Despite the parent's will, the child would legally receive a significant percentage of the estate (e.g., half if there's one child, two-thirds if there are two, three-quarters if there are three or more). The charity would only receive the remaining portion, known as the "disposable portion," because the law protects the child's right to their forced share.

• Example 2: A Spouse's Claim in Spain

  Consider a scenario in Spain, another civil law jurisdiction, where a husband passes away. In his will, he grants all his property to his siblings, making no provision for his wife. Spanish law, like many civil law systems, recognizes a "forced portion" for a surviving spouse. This often takes the form of a usufruct (the right to use and enjoy property, but not own it outright) over a certain part of the estate. Even though the will attempts to exclude her, the wife would legally be entitled to this forced portion, ensuring she receives a benefit from the estate as mandated by law.

• Example 3: Unequal Distribution Attempt in Louisiana

  A parent in Louisiana, which has a unique legal system influenced by civil law, has three children. In their will, they attempt to leave 90% of their estate to one child and only 5% to each of the other two, believing they have complete freedom to distribute their assets as they wish. However, Louisiana law includes "forced heirship" for descendants under specific conditions (e.g., if they are under 24 years old or permanently incapacitated). If these conditions are met, the two children who were largely disinherited would be considered "forced heirs" and would be entitled to a "forced portion" of the estate. The will's attempt to distribute the estate so unequally would be overridden by the law to ensure the forced heirs receive their legally mandated share, typically a combined one-quarter of the estate if there are two or more forced heirs.