HW Legal
Can I Exclude Someone from Inheriting My Estate? If So, Whom and Under What Conditions? Who Are “Forced Heirs” and What Does That Mean?
Who Is a Forced Heir and What Is a Reserved Share?
Under Czech law, only so-called forced heirs may be disinherited. These are the deceased's children and, if they do not inherit, their descendants.
Forced heirs are entitled to a reserved share of the estate. For adult heirs, the reserved share corresponds to one quarter of their statutory inheritance share. For minor heirs, it amounts to three quarters of their statutory inheritance share.
As a general rule, a testator may not deprive a forced heir of their reserved share. The principal exception is a valid disinheritance.
It is important to note that the reserved share is not a direct share of the estate itself. Rather, it is a monetary claim equal to the value of the reserved share. A forced heir may assert this claim against the heirs and legatees who inherit under the estate plan.
What Are the Statutory Grounds for Disinheritance?
A forced heir may be disinherited only for statutory reasons.
A testator may disinherit a forced heir if that heir:
- failed to provide the testator with necessary assistance in a situation of need;
- failed to demonstrate genuine interest in the testator that could reasonably be expected under the circumstances;
- was convicted of a criminal offence committed under circumstances demonstrating a depraved character; or
- permanently leads a dissolute or disorderly life.
The law also recognises two special grounds for disinheritance designed to protect the testator's family from the financial consequences of a forced heir's conduct.
A forced heir may be disinherited if there is a justified concern that they will not preserve even the reserved share for their own descendants because they:
- are heavily indebted; or
- act in a wasteful or reckless manner with money.
These grounds may exist even if the forced heir is not formally insolvent. Likewise, it is not necessary that the heir has already dissipated a substantial part of their assets, provided that their wasteful nature is beyond reasonable doubt.
However, these two grounds may only be used if the testator leaves the reserved share to the children of the disinherited heir or, if applicable, to their descendants.
If the forced heir has no children, disinheritance based solely on indebtedness or wasteful conduct is not valid.
What Are the Most Common Grounds for Disinheritance?
The most frequently invoked ground is the heir's failure to show genuine interest in the testator.
However, determining what constitutes "genuine interest" can be challenging.
For example, Czech case law has held that where the lack of interest shown by a descendant is itself the result of the testator's lack of interest in that descendant, the descendant's conduct cannot automatically justify disinheritance (Rc 23/1998).
Conversely, case law has also recognised that conduct which significantly exceeds the boundaries of ordinary social propriety may, in certain circumstances, indicate that the descendant does not show genuine interest in the testator.
Another common ground is that the heir permanently leads a disorderly or dissolute life.
However, where such behaviour is the consequence of poor treatment during childhood or inadequate upbringing by the testator, disinheritance on that basis may not be valid.
How Can a Testator Disinherit Someone?
The most common method is through a declaration of disinheritance.
The same formal requirements that apply to wills also apply to declarations of disinheritance.
A declaration of disinheritance may therefore be made, amended, or revoked in the following forms:
- a handwritten private document (holographic form), written entirely by the testator in their own handwriting and personally signed;
- a private document signed by the testator in the presence of two simultaneously present witnesses (allographic form), where the testator declares that the document contains the disinheritance of a forced heir;
- a notarial deed; or
- an extraordinary form available in urgent situations where statutory conditions are met.
The declaration must expressly state that the forced heir is being disinherited, either entirely excluding them from their right to a reserved share or reducing that entitlement.
Can Disinheritance Occur Implicitly?
Disinheritance may also occur implicitly but lawfully.
For example, if a testator knowingly omits a forced heir from their will and the omitted heir's conduct satisfies one of the statutory grounds for disinheritance, the omission may constitute a valid disinheritance.
However, if challenged, the existence of the statutory ground must subsequently be proven in contentious court proceedings.
Practical Tips
As with a will, a declaration of disinheritance may only be made by one person on their own behalf.
For example, a joint declaration by both parents disinheriting their wasteful son would be invalid.
It is also not possible to disinherit someone preventively in anticipation of future misconduct. A statutory ground for disinheritance must already exist at the time the declaration is made.
Finally, a declaration of disinheritance cannot simply be typed on a computer and signed without witnesses. Failure to comply with the required formalities may render the disinheritance invalid.