The statutory portion is the legally determined share of the estate that must be allocated to certain heirs, regardless of the deceased person’s wishes expressed in a will.
The legislation limits the deceased person’s freedom in the distribution of their estate, as it stipulates that a portion of the estate must be reserved for forced heirs, as defined in Article 25 of the Inheritance Act (ZD). Forced heirs may include the following individuals from the circle of legal heirs: the deceased person’s descendants, adoptive children and their descendants, the deceased person’s parents or adoptive parents, and the deceased person’s spouse or cohabiting partner. If permanently incapacitated for work and without sufficient means of subsistence, the deceased person’s grandparents, siblings, as well as the parents and children of the deceased person’s adoptive parents, may also be considered forced heirs.
The statutory portion for each forced heir is smaller than the legal inheritance share. Specifically, it amounts to half or one-third of the share they would be entitled to under the legal succession order. The half statutory portion applies to the deceased person’s descendants, adoptive children and their descendants, and the spouse (or cohabiting partner), while the remaining forced heirs (e.g., grandparents, siblings, etc.) are entitled to one-third of the inheritance share.
Forced heirs must assert their statutory portion in the probate process. If the statutory portion is violated, they must request the modification (reduction) of testamentary dispositions or the return of gifts. The court does not consider these matters ex officio; instead, each forced heir must raise the claim themselves in the probate procedure.
In exceptional cases, forced heirs may enforce their right to the statutory portion through a civil lawsuit (e.g., if no probate hearing takes place because the deceased person distributed the estate during their lifetime). The claim for the return of gifts must be filed within three years of the deceased person’s death being officially declared.
Disinheritance and unworthiness to inherit are exceptions to the inheritance rights of forced heirs. A disqualified or unworthy heir is not entitled to inherit. However, in both cases, it is possible for the reasons for unworthiness or disinheritance to cease, allowing the person to inherit if the deceased person "forgives" the unworthy or disinherited heir.
The court monitors the reasons for unworthiness to inherit ex officio, while disinheritance can only be validated by the court if explicitly and clearly stated in the will. The reasons for unworthiness to inherit are defined more narrowly by law than the reasons for disinheritance. In the event of a dispute regarding the existence of reasons for disinheritance, the burden of proof lies with the party asserting the disinheritance, not the disinherited heir.
