Inheritance rules: deceased with children

Verified 06 April 2023 - Legal and Administrative Information Directorate (Prime Minister)

One of your loved ones just passed away. Want to know if you inherit and calculate your inheritance share? When the deceased has not made a will, his property goes to his descendants, and to her husband if he was married. When the deceased has made a will, he must reserve part of his estate to his descendants. It can allocate the remaining part freely (to the benefit of an heir or a third party).

No will

The heirs are the descendants of the deceased. The surviving spouse also inherits in all cases.

Children

All children have the same rights in the estate. The sharing shall be made equally between them.

Example :

If the deceased had two children during his marriage, one of them with a woman other than his wife, each child will receive half of his father's property, after the share allocated to the wife.

If the child has been adopted, his or her rights differ depending on whether the child has been adopted in simple adoption or plenary adoption.

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Simple adoption

The adoptee inherits the two families, that is to say from his family of origin and from his adoptive family.

The adoptee has the same rights in the estates of his adoptive parents as his non-adopted siblings.

Plenary adoption

The adopted child has the right to inherit from his or her adoptive parents. He has the same rights in the estate as his unadopted siblings.

However, this adoption resulted in her losing her rights to the inheritance of her biological parents.

Grandchildren

In principle, a grandchild does not inherit from his or her grandparents.

However, he inherits by representation, that is to say instead of his parents, in the following 3 cases:

  • Sound parent has died
  • His parent relinquishes the estate of his own parent
  • His parent is unworthy to succeed

Spouse or partner

The deceased's spouse inherits in all cases. However, its share in the estate varies according to the spouses’ matrimonial property regime (community reduced to acquisitions or marriage contract). Its share also varies according to the presence of children common to the couple or not.

Please note

The husband also benefits from a special right in his dwelling.

On the other hand, the partner of the Civil partnerships or the partner of the deceased has no right to his estate.

Tableau - Person with whom the deceased lived: right to inheritance

Situation of the person living with the deceased

Right to the estate of the deceased

Spouse

Yes

Spouse separated from body

Yes, except where the spouses waive their inheritance rights in their separation agreement

Ex-husband

No

Civil partnership Partner

No

Cohabiting Partner

No

Inheritance shares are allocated differently depending on whether the deceased was married or not.

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The deceased was married

Inheritance shares are allocated differently depending on whether the deceased leaves only children from the couple or not.

The deceased leaves only children from the couple

If the deceased leaves only children from the couple, the surviving spouse has the choice between the following 2 options:

  • Usufruct of the totality of the succession
  • Full ownership of the 1/4 of the succession

If the spouse chooses the usufruct of the entire estate, the children inherit the bare-ownership of the entire estate.

If the spouse chooses full ownership of the 1/4 from the estate, the children inherit the full ownership of the 3/4 of the estate.

Any heir may request, in writing, the surviving spouse to choose one of the 2 options. If the surviving spouse does not make known his or her choice in writing in the 3 months, the usufruct of the whole of the succession shall be attributed to it.

If the surviving spouse dies without having made his or her choice, he or she shall be deemed to have opted for usufruct of the entire estate.

Warning  

The spouse's share of the inheritance may be different if the deceased has made a gift to the last living.

The deceased leaves children uncommon to the couple

If the deceased leaves children that are not common to the couple, the surviving spouse inherits the 1/4 of the succession in full ownership.

In this case, children inherit 3/4 of the estate in full ownership.

Warning  

The spouse's share of the inheritance may be different if the deceased has made a gift to the last living.

Unmarried deceased

His belongings go to his children.

Her children receive all of her belongings in equal parts.

Reminder

If the deceased was living as a couple, his Civil partnership partner or cohabiting partner have no rights to his estate.

Will

Reserving heirs

Some heirs cannot be excluded from the estate. These are the heirs reserving. They must receive a share of the deceased's inheritance: this is the hereditary reserve.

These are the children of the deceased (including adopted children) and their descendants who are the heirs of the deceased.

FYI  

the child adopted in simple adoption is not the heir to whom the ascendants of his adoptive parents. His grandparents and his adopted great-grandparents can therefore disinherit him in their will.

Available Quota

The hereditary reserve never represents the entire inheritance of the deceased.

The remaining part of the heritage is called the available quota. It can be distributed freely (to an heir or a third party) by the deceased in his will. 

The share of inheritance reserved for children is as follows:

  • The half property for 1 child
  • The 2/3 property for 2 children
  • The 3/4 property for 3 or more children

The available quota, i.e. the remaining part of the estate, may be freely assigned by the deceased in his will.

Example :

The deceased has a heritage of €200,000 and three children. His children will share 3/4 of this heritage either €150,000 in equal parts. Each child will therefore receive €50,000. The deceased can assign the remaining 1/4 either €50,000 to persons of his choice (heirs or third parties).

FYI  

parents have a right of return, that is, the right to take back the property they had given to their children before their death. The value of these assets is set off against the inheritance rights of the father and mother.

An heir who has not received a lot equal to his reserve share may exercise a reduction action.

Who can help me?

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