Forced Heirship and Compulsory Share Systems in Global Legal Orders: A Comparative Analysis in the Context of International Estate Planning
The protection of immediate family members against complete disinheritance represents one of the most divergent areas of comparative law, and it would be erroneous to assume that Poland’s zachowek system reflects universal or globally uniform standards. While certain legal orders embrace the principle of absolute testamentary freedom, others implement various mechanisms ensuring minimum succession rights for designated categories of heirs. This diversity of approaches assumes particular significance in an era of increasing international mobility, wherein individuals relocating their domicile or acquiring foreign real property may unwittingly subject themselves to fundamentally different succession regimes.
The fundamental distinction between legal systems lies in their underlying philosophy regarding family protection. Continental European systems traditionally emphasize the preservation of family structures through guaranteed succession shares, whereas common law jurisdictions prioritize individual autonomy and testamentary freedom. This foundational difference has generated distinct legal mechanisms that may yield dramatically disparate outcomes in analogous factual circumstances.
Normative Models of Forced Heirship Protection
The Property Rights Model (French System)
The French legal system serves as the archetype of a regime wherein forced heirs automatically acquire proprietary rights to specified portions of the estate. The réserve héréditaire (reserved portion) constitutes co-ownership ex lege, which the testator cannot impair through testamentary dispositions. In France, the reserved portion comprises fifty percent of the estate for one child, two-thirds (66.67%) for two children, and three-quarters (75%) for three or more children, rendering the French system among Europe’s most restrictive.
Similar forced heirship concepts have been adopted by Spain, Italy, and Belgium, albeit with significant modifications. In Italy, forced heirs receive between fifty percent (one child) and two-thirds of the estate (two or more children), while Belgium, following its 2018 reform, consistently reserves fifty percent of the estate for children regardless of their number. Spain implements an even more complex system, dividing the reserved portion between the legítima estricta (strict legitimate portion) distributed equally among children and the mejora (improvement), which permits favoring certain descendants. Collectively, the Spanish reserved portion may encompass two-thirds of the decedent’s estate.
The Monetary Claim Model (Germanic System)
The German legal system has evolved from the classical French model toward granting forced heirs merely a monetary claim (Pflichtteil) against testamentary heirs. This solution, also adopted in Austria, Poland, and the Netherlands, provides greater testamentary flexibility while maintaining protection for immediate family members.
In Germany, the forced share claim equals half of the statutory inheritance portion. Similar proportions govern other countries within this group, though they differ regarding the circle of beneficiaries—while Germany and Poland extend forced share rights to descendants, spouses, and parents, the Netherlands limits such rights exclusively to descendants.
The Discretionary Model (Anglo-American System)
Common law systems, exemplified by the United Kingdom, Canada, and Australia, reject automatic succession entitlements in favor of discretionary judicial intervention. Courts may order “reasonable financial provision” for family members based on individualized assessments of needs and circumstances, rather than rigid legal formulas.
This system offers maximum flexibility and case-specific adaptation, but simultaneously introduces legal uncertainty, as outcomes can be predicted only to a limited extent.
The Sharia Model
Legal systems based on Islamic law, operative in countries such as Saudi Arabia and the United Arab Emirates, implement the most extensive limitations on testamentary freedom. Sharia law restricts testamentary disposition to a maximum of one-third of the estate, while the remaining two-thirds must be distributed according to religious law principles among religiously designated heirs, incorporating complex rules governing different heir categories and gender distinctions.
Asian System Specificities
Japan employs a legally protected estate portion system (iryūbun), guaranteeing forced heirs (excluding siblings) specified estate shares: one-third when parents constitute the sole heirs, and one-half in all other circumstances. This system is supplemented by special provisions facilitating business succession, including tax preferences for family enterprise transfers and the traditional practice of mukoyoshi (adoption of adult males as business successors).
China has developed a distinctive approach based on economic dependency rather than automatic entitlements. Chinese law requires “mandatory reservation of necessary estate portions for heirs dependent upon the deceased who lack working capacity and sources of livelihood.” This approach reflects the transition from traditional family structures to a system grounded in actual economic needs.
Hybrid Systems and Specialized Solutions
Louisiana constitutes the sole U.S. jurisdiction preserving forced heirship, limited to children under twenty-four years of age or permanently disabled adult children. The system reserves one-fourth of the estate for one forced heir or one-half for multiple heirs.
Brazil maintains a rigid fifty-fifty division between the “legitimate portion” reserved for forced heirs and the “available portion” subject to testamentary freedom. Legislative proposals currently under consideration would exclude spouses from forced heirship protection, reflecting adaptation to contemporary family structures.
Cyprus and Malta: Challenges for Polish Tax Residents
The systems of Cyprus and Malta merit particular attention as popular destinations for Polish tax residents, applying significantly more restrictive rules than Polish law.
Cyprus implements forced heirship through division of the estate into statutory and disposable portions. When the decedent leaves a spouse and children, seventy-five percent of the estate must be allocated according to statutory shares, leaving merely twenty-five percent for free disposition. This contrasts sharply with Poland’s zachowek system, limited to half the statutory share and applicable only when heirs fail to receive adequate portions.
Malta implements similarly rigorous principles. Children receive a reserved portion of one-third (up to four children) or one-half (five or more children), while spouses are entitled to one-fourth (with children) or one-third (without children). Practically, this means that a decedent with three children may freely dispose of only approximately forty-one percent of the estate.
These differences assume critical significance under EU Succession Regulation 650/2012, which permits selection of national law but requires conscious and express testamentary action, and furthermore excludes real property when the deceased maintained habitual residence in the lex situs jurisdiction.
Dubai: An Extreme Case of Systemic Differences
Tax residents in the United Arab Emirates may encounter even more dramatic disparities. Under general principles, a foreigner dying in Dubai without a registered will becomes subject to Sharia law, which prescribes rigid estate distribution rules potentially contradicting the decedent’s intentions entirely.
While UAE law permits non-Muslims to select their nationality’s law, such selection must be expressly indicated in the will. Federal Decree No. 41 of 2022 introduced additional flexibility, but fundamental systemic differences remain significant.
Practical Consequences for Estate Planning
The Problem of Legal Awareness
The fundamental challenge lies in the lack of awareness among individuals changing tax residence regarding potential succession consequences. Tax advisors focus on optimizing current fiscal burdens, often overlooking long-term succession law implications. This advisory gap may lead to situations wherein individuals achieving significant tax benefits unwittingly subject their estates to substantially more restrictive succession regimes.
Proactive versus Reactive Planning
Systemic differences necessitate proactive estate planning approaches. Whereas Polish zachowek constitutes a post-mortem monetary claim, systems such as French or Cypriot law automatically vest forced heirs with proprietary rights that cannot be effectively limited after the testator’s death.
Consequently, effective international estate planning must consider not only current domicile but also potential future changes and asset locations. Decisions to acquire real property in jurisdictions with restrictive succession laws may have long-term consequences for entire succession strategies.
Choice of Applicable Law
Within the European Union, Succession Regulation 650/2012 permits selection of nationality law as governing the entire estate. This mechanism may prove crucial for individuals relocating while seeking to maintain the predictability of Polish succession law.
The choice of law must be expressly made in the will and governs the entire succession relationship. Selective application of different laws to different estate components is impermissible, requiring comprehensive analysis of such decisions’ consequences.
In non-EU jurisdictions or particularly complex situations, international legal structures such as trusts or family foundations may be necessary. While these structures can provide solutions, they require comprehensive analysis regarding compliance with beneficiaries’ residence country law and tax implications.
Evolutionary Trends and Projections
Contemporary legal systems exhibit contradictory tendencies. Reforms in Switzerland and Germany suggest strengthening testamentary freedom and limiting forced heirship circles. Conversely, certain jurisdictions, including Malta and Cyprus, maintain highly restrictive systems, with social debates not necessarily favoring liberalization.
This diversity indicates that international estate planning will continue requiring consideration of substantial inter-systemic differences in the foreseeable future. Harmonization appears unlikely given the profound cultural and historical roots of different family protection approaches.
European demographic aging and evolving family structures will likely influence succession law development. Traditional justifications for forced heirship protection, based on family subsistence necessities, may lose relevance in societies with comprehensive social security systems.
Simultaneously, increasing wealth inequality and capital concentration may generate opposing tendencies, strengthening arguments for limiting testamentary freedom to prevent excessive wealth concentration.
Conclusion
The comparative analysis of forced heirship systems reveals a legal landscape of remarkable diversity, wherein fundamentally different philosophical approaches to family protection and individual autonomy generate practical consequences of extraordinary significance for international estate planning. The evolution from property-based models to monetary claims, from rigid formulas to discretionary assessments, and from universal principles to culturally specific applications demonstrates that succession law remains deeply embedded in distinct legal traditions and social values.
For practitioners and individuals engaged in international estate planning, this diversity necessitates sophisticated legal analysis that transcends mere tax optimization to encompass comprehensive succession strategy development. The increasing mobility of both persons and assets in our globalized economy ensures that these systemic differences will continue to present both challenges and opportunities for creative legal structuring.
The trajectory of future developments suggests neither convergence nor divergence, but rather a continued coexistence of fundamentally different approaches to balancing individual testamentary freedom against family protection imperatives. This reality demands that international estate planning remain a discipline requiring not only technical legal expertise but also deep cultural and comparative law understanding, ensuring that clients’ legitimate expectations align with applicable legal realities across multiple jurisdictions.
Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.
