Limitations to Testamentary Freedom in different countries


Testamentary freedom allows owners in deciding how to distribute his estate. Nevertheless, there are some limits to it. A common class of restriction isthe mandatory portion for spouses and children: the forced heirship. According to this concept, a certain number of heirs, called forced heirs, have a legal right to obtain a certain share of the estate. Therefore, the decedent cannot freely dispose of his will. The right to a forced a share is present in almost all modern succession law systems, but regulation is not the same in all of them.


UNITED STATES. The law of inheritance in the USA is 50 laws of inheritance, one of each of the 50 states. Most of US jurisdictions have very limited protection for children and spouses compared with many civil law jurisdictions. Louisiana is the only state which has forced heirship in the civil law sense of the term. Nevertheless, many states of the USA provide protections for surviving spouses (except Georgia), but they have very limited or no effective inheritance protection for descendants.

ENGLAND. Until 1938, when the Parliament enacted the Inheritance (Family Provision) Act, 1938, there were no legal limitations on freedom of testation in England. Nowadays there is still no forced heirship provision whereby a testator must leave part of his assents for his family and depends. However, the Inheritance (Provision for Family and Dependents Act) 1975provides that if reasonable financial provision is not made for certain specified persons under a testator’s will, those persons (including spouse and children) can bring a claim against the state.

PANAMA. The Civil Code of the Republic of Panama allows substantial freedom to dispose of assets, as long as a pension or provision is provided for children (age up to 25), parents, spouse and handicapped children, but only if and for the time they need this support. It shall be considered necessary if they do not have enough assets.

FRANCE. The starting point in French law is the heir’s right to the “réservehéréditaire”, a minimum share of a decedent’s estate to which heirs are entitled. It does not only just limit transfers at death, but also applies to transfers made during life. Therefore, lifetime gifts will be taken into account at the time of death in calculating the heir’s reserved portions. The amount of this share depends on the existence – and number – of descendants and spouses.

SPAIN. With the exception of Navarre, Spanish Civil Code provides people closely related to the testator a part of the estate, called “la legítima”. Children are entitled to receive 2/3 of the estate. On the other hand, the testator can freely dispose of the other 1/3. Also, the surviving spouse must receive a usufruct of at least a 1/3 part of the will and lifetime gifts will also be taken into account at the time of calculating heir’s portions.

GERMANY. Issue of the deceases, spouse and/or parents (if the deceased was not survived by issue) can claim a forced share (“pflichtteil”) if the testator did not include them in his will. Nevertheless, the decedent is still free to designate any person as heir, but these privileged people are entitled to demand half of what they would have inherited in an intestate situation.



Ray D. Madofff. Boston College Law School. “A Tale of Two Countries: Comparing the Law of Inheritance in Two Seemingly Opposite Systems”.


PLC Sumarry of key succession regime provisions


Inheritance (Provision for Family and Dependants) Act 1975


Spanish Civil Code


Civil Code of the Republic of Panama




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