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- No will or an invalid will
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If all heirs have already discussed and agreed on how to distribute the estate, the estate must first be distributed according to the agreed method. If the heirs cannot reach a consensus, the estate will be distributed according to the statutory shares.
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Where there is a will
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The estate is distributed according to the contents of the will. As for estate property not mentioned in the will, it will be distributed as if there were no will.
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If the contents of the will infringe upon an heir’s compulsory portion, the heir whose compulsory portion has been infringed may exercise the right of abatement and request to receive estate property at least equal to the value of the compulsory portion. The most common example is leaving the estate only to a certain male heir, such as the eldest son or eldest grandson, thereby infringing upon the compulsory portions of the other siblings.
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2. When are Statutory Shares used?
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A statutory share literally means the “share that should be inherited.” It is the “default” method of estate distribution prescribed by law, meaning how much each person “should” receive.
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If the decedent did not make a will before death, and all heirs cannot reach an agreement, then when a lawsuit for estate partition is filed with the court, the estate will be distributed according to the statutory shares.
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In summary, statutory shares apply where there is “no will,” or where “there is a will, but some estate property is not mentioned in the will, so how should that property be distributed?” If all heirs have already reached an estate partition agreement, the matter is handled first according to the method set out in that partition agreement.
3. How are Statutory Shares calculated?
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The prerequisite to understand is that “the spouse is a natural heir.” The spouse always has the right to inherit and does not need to be ranked in order with the other heirs.
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The principle for calculating statutory shares is that as long as a person in a prior order has not died, persons in the later orders do not have the right to inherit.
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If the grandparents have also passed away, it will be deemed that there are no heirs. If the estate was not bequeathed to another person by will, it will be taken by the state.
4. Method for Distributing Statutory Shares
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Distribution between the spouse and children: the spouse and children share equally by number of persons.
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Distribution between the spouse and parents: the spouse first receives one-half, and the remaining portion is divided equally between the parents.
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Distribution between the spouse and siblings: the spouse first receives one-half, and the remaining portion is divided equally among the siblings by number of persons.
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Distribution between the spouse and grandparents: the spouse first receives two-thirds, and the remaining portion is divided equally among the grandparents.
p.s. If there is no spouse, or if the spouse has already passed away, the “spouse” portion above is treated as nonexistent, and the estate is divided equally instead.
| Combination of Heir Statuses | Statutory Share |
|---|---|
| Spouse + Children | Equal shares |
| Spouse + Parents | The spouse first receives 1/2, and the remaining portion is divided equally between the parents. |
| Spouse + Siblings | The spouse first receives 1/2, and the remaining portion is divided equally among the siblings by number of persons. |
| Spouse + Grandparents | The spouse first receives 2/3, and the remaining 1/3 is divided equally among the grandparents. |
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If a child passes away first, the grandchild may inherit per stirpes. Only when there are no descendants at all will the second-order heirs, namely the parents, inherit.
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If there is no spouse, or if the spouse passed away first, the spouse’s share of the estate is 0.
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An estate partition agreement takes priority over statutory shares. Therefore, before signing an estate partition agreement, it is important to think carefully.
6. What Is a Compulsory Portion?
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To prevent all estate property from being left only to a specific heir due to preference for that heir, the compulsory portion protects each heir’s ability to receive estate property.
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The compulsory portion under the Civil Code means that each heir has a minimum inheritance ratio. It prevents unfair estate distribution and ensures that each heir can receive a minimum amount.
7. When Is a Compulsory Portion Used?
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A compulsory portion arises only when “there is a will, and the contents of the will infringe upon the compulsory portion.” If there is no will, there will be no issue of compulsory portion. A well-planned estate should take compulsory portions into account.
8. How Is a Compulsory Portion Calculated?
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According to Article 1223 of the Civil Code, the compulsory portion is calculated based on the “statutory share,” rather than directly from the estate property itself. First, the statutory share is calculated from the estate, and then the compulsory portion is calculated from that statutory share.
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Spouse and children: one-half of the statutory share.
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Spouse and parents: one-half of the statutory share.
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Spouse and siblings: one-half of the spouse’s statutory share, and one-third of the siblings’ statutory shares.
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Spouse and grandparents: one-half of the spouse’s statutory share, and one-third of the grandparents’ statutory shares.
p.s. If there is no spouse, or if the spouse has already passed away, the “spouse” portion above is treated as nonexistent.
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Combination of Heir Statuses
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Compulsory Portion
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Spouse + Children
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Spouse: 1/2 of the statutory share
Children: 1/2 of the statutory share |
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Spouse + Parents
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Spouse: 1/2 of the statutory share
Parents: 1/2 of the statutory share |
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Spouse + Siblings
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Spouse: 1/2 of the statutory share
Siblings: 1/3 of the statutory share |
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Spouse + Grandparents
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Spouse: 1/2 of the statutory share
Grandparents: 1/3 of the statutory share |
9. What Should I Do If My Compulsory Portion Has Been Infringed?
- According to Article 1146 of the Civil Code, if the right of inheritance has been infringed, restoration may be claimed.
- Generally, the way to handle infringement of a compulsory portion is “abatement and restoration,” which means that the entire estate is redistributed, or even that the court is asked to make a judicial distribution.
- However, there is a time limit for filing a compulsory portion lawsuit. It is recommended to file the lawsuit within two years from becoming aware of the unfair estate distribution. If more than two years have passed, the limitation period will instead be calculated as “within ten years from the time the right of inheritance becomes effective.”
- If both periods have passed, this is equivalent to losing the right to pursue recovery, and the heir will be unable to recover the minimum estate amount. Therefore, heirs must make sure to act within the time allowed for filing a claim.
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