Statutory portion of an inheritance
Statutory portion of an inheritance is a minimum share, which the heir receives in spite of the Last Will of the deceased. According to the provisions of the Inheritance Code, every direct heir and adopted child as well as their descendants have the right to get a statutory portion. A statutory portion can be fulfilled as a property or the beneficiary is also allowed to pay it in cash if that is not forbidden in the will.
The statutory portion is half the value of the inheritance share of each heir. If there is no will, the children will inherit the entire property of the deceased. If the testament has a certain other beneficiary, or one or some of the children of the deceased will be beneficiaries, it is not possible to bequeath more than half of the assets of the estate if the statutory portions will be required.
Advance and Gift in calculating the statutory portion
A direct heir can require that inheritance advances, certain gifts and gift-like donations will be taken into account in statutory portion calculations.
Gifts to be taken into consideration are those donations which could be equated with a Last will. Gifts may also be considered to favor the recipient of the gift to the detriment of the legitimate heir (the so-called favors). In calculation of the statutory portion also excessive life insurance payments of the deceased might be added to the assets of the estate on the demand of the he
Prepayments and such gifts shall be valued to the date of donation. Consequently, the computational value of the estate shall not be assessed on the basis of what the estate would be if no such advance payments would had been made. Thus, e.g. inflation might reduce the value of inheritance advances by the time of calculating the statutory portion. If there will not be enough assets in the estate to cover the computational statutory portions, the advance-beneficiaries may need to return the property they have received to supplement the legal portions. An heir, who is entitled to get a statutory portion may, if necessary, require a supplement by filing a lawsuit in court.
Requiring the statutory portion and waiving it
Direct heir must invoke to inefficiency of the Last Will by giving a legal statement to the beneficiary within six months after getting notified about the will and its contents according to the regulations. The heir cannot invoke the ineffectiveness of the will if he has given up on the statutory portion, for example, by accepting the will. Claiming for statutory portion is an individual action. Each heir must therefore submit his legal claim individually. If one heir does not submit a claim, it will not increase the portion of the other heirs. Each heir can therefore freely decide if he wishes to make the claim or not and which prepayments and advances he wants include in to the calculation.
Depending on the individual requirements, the statutory portions of every party might differ from each other.
Loss of legal right
An heir can lose his right to the statutory portion if he has been disinherited according to the regulations. A testator can disinherit his heir, if this has “intentionally and deeply offended the testator, his or her offspring or their heirs.”, or if the heir is “continually spending a dishonest and immoral life”. It must be prescribed in the testament as well as the grounds for this testamentary disposition has to be mentioned. If necessary, the motive must be proved.
The influence of the widow’s minimum rights on the statutory portion
The minimum possession right of the widow, that is, the right to control the apartment and the housing movable property, is stronger than the right of an heir. If the estate does not have any property other than the apartment under control of the widow, it is possible that the heir might not get his statutory portions after the death of that parent. In this case, the right to the statutory portion will only be realized after the widow’s death.
Widows right for adjustment and statutory portion
The survived spouse (widow) by virtue Chapter 103, Section 2 of the AL, has the right to abstain from paying any adjustment to the heirs of that spouse, who dies first. This privilege may also affect the extent of the property of the estate.
In order to find out whether or not the adjustment privilege should be taken into account in the statutory calculations, a computational partition according to the Marriage Act shall be made. The calculation shall be done according to the rules of partition. This helps to determine the amount of the property of the estate and the widow.
If the survived spouse is wealthier than the deceased, he can decide whether he gives adjustment to the heirs of the deceased or not. If the widow wishes to pay adjustment, it shall be calculated on the basis of the marital share in property.
If the widow invokes to adjustment privilege, the assets of the death estate consist solely of the property of the deceased, which has a direct influence on the statutory portion by decreasing it.
The widow has to invoke to the adjustment privilege in partition. If the widow dies before the partition process has been concluded, the heirs of the widow cannot claim for the privilege. In other words it is considered only as a personal right of the widow.