What are the rules for inheriting? - No will

Verified 08 octobre 2024 - Directorate for Legal and Administrative Information (Prime Minister)

Your situation

  • The deceased did not make a will
  • The deceased had children
  • The deceased was married
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Prioritization of heirs

When the deceased did not will, it is the law which designates its heirs and prioritize them. We're talking about legal devolution.

The heirs are classified in the following order, in the absence of a surviving spouse:

  1. Children and their families descendants (no distinction should be made between them, regardless of the relationship between the parents)
  2. The parents, brothers and sisters and their descendants
  3. The ascendants other than parents
  4. The collateral other than siblings and descendants of the latter

Each of these four categories constitutes an order of heirs that excludes the following. It is the heirs closest in degree of kinship who inherit and exclude others.

However, the rule of representation allows the descendants of a deceased heir to collect his share of the inheritance.

Special place of the spouse

The surviving spouse inherits in all cases. However, its share in the estate varies according to the following situations:

Please note

the husband also benefits from special right in his dwelling.

Tableau - Spouse or former spouse: right to inheritance

Marital status in relation to 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

Inheritance shares are allocated differently depending on whether the deceased had children or not.

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 a choice between 2 options following:

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

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.

Warning  

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

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.

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.

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