The country where you are buying a property may have different inheritance rules involving ‘forced heirship’. This can result in your wishes being overridden, and a widowed spouse left high and dry. But forced heirship does offer protection for your offspring within blended families.
Are you assuming that your spouse will automatically inherit the overseas home you share? Or that your will ‘back home’ will cover it? Not so fast…
Forced heirship is where national law states that a portion of your estate must be left to your offspring when you die. It’s the rule in most European countries. So in today’s world, where a couple buying overseas in later life may well have children from previous marriages, it can have important implications.
As one reader told us: “Because we’re a second marriage — I don’t have children, my husband does — I was in danger of being turfed out of the house if something happened to him.”
On the other hand, the forced heirship law is also a protection from the unfair situation some families find themselves in, with kids disinherited after a single parent remarries late in life. So what are your options?
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How inheritance law in Europe could affect you
Firstly, a bit of legal jargon. Both England (with Wales) and the USA operate under common law systems, a key feature of which is “testamentary freedom”. In a nutshell, this means citizens are free to distribute assets and property freely when they die – whether to the local cats home or their children. There is no obligation to leave anything to immediate family (there is the odd caveat!).
Spain, like other civil law countries, in Europe has forced heirship rules
Meanwhile, most European countries are civil law jurisdictions. Under this type of system, forced heirship rules are commonplace. This means that when someone dies a proportion of their estate is reserved for various family members, prioritising children and spouses/partners.
Forced heirship risks
The red flags in any purchase are:
- Children from a previous relationship
- One spouse funding most of the purchase
- Buying in one name only
- Not having a local will in place
- Making any assumptions based on UK/US inheritance norms.
Always start by seeking professional advice from a specialist bi-lingual law firm. Otherwise, there a range of solutions used to mitigate exposure to forced heirship and in certain instances inheritance tax.
European countries with forced heirship rules
Within most of Europe forced heirship is the norm. In Eastern Europe and the Nordic countries it is less strictly applied, but British and US buyers will be especially affected in France, Italy, Portugal, Greece and Malta, plus Spain with regional variations.
In Italy and Portugal two thirds of a deceased’s estate must be divided between the spouse and any children. France’s ‘réserve héréditaire’ rule means that children can be left be up to 75% of a parent’s estate. In Spain two thirds of the deceased’s estate is reserved for children – one of those thirds must be split equally between them and the other can be distributed amongst them freely. Meanwhile, a surviving spouse retains a life interest in their departed partner’s Spanish estate.
Rules vary by country, but usually the absence of children increases the proportion that must be left to a spouse and/or ascendant (parent or grandparent of the deceased).
The dangers of forced heirship for homeowners
With no provisions in place, in some circumstances the law of the country where a property is located could be applied on the owner’s death, which can be nothing short of calamitous. The main implications are:
- A surviving spouse unable to sell without children’s consent
- A spouse forced to sell at the worst possible time
- Extra tax bills
- Long probate processes in another language
- Estranged children suddenly having legal power
Most homeowners would prefer their property to be passed on according to their own wishes, but this will not happen automatically. So non-EU citizens with homes in Europe need to take special care.
When the deceased was married more than once and lived in an EU country, any children from a previous marriage(s) retain rights to their estate. Even if they may be living independent lives in another country.
Consequently, the surviving spouse can be left with very little. They could lose the home they shared with the deceased for many years, like something out of a Jane Austen novel.
The situation is worsened if the parties involved do not get on or barely know each other.
How do you get round forced heirship rules?
The good news is that for citizens of the UK and USA and other countries with common law systems, protecting yourself from forced heirship is relatively straightforward.
The most common solution is to make a will or legally certified document in the country where the property is located. This will express your explicit wish for the succession law of your own country of domicile (origin) to be applied. This is separate to any other will you might have in your country of origin. It should be in the local language and translated into English. Your lawyer must take care to ensure that the wills work in tandem, with neither revoking the other.
In practice, this means a UK national who owns a home in Spain can elect for English law to apply to their property. This will over-ride Spanish forced heirship. Looking in closer detail, it enables an individual who owns a Spanish house in their sole name to leave that property entirely to their spouse, or unmarried partner, rather than their children, should they so wish.
Non-EU citizens who live in the EU
Does it make any difference if you live in that country or just own a holiday home? No, you can have your own country’s law apply whether you are living there or are a non-resident homeowner. EU laws state that a British person who lives within the EU can decide to have British law apply to their estate or parts of their estate. That also goes for US, Canadian and others.
But EU law also states that if you don’t make an explicit choice on which law to apply, the rules will follow those of whichever country you are deemed a ‘habitual’ resident. It’s fair to say that this can get confusing.
So the safest option is to put in place a will leaving no doubt about which law should be applied. It also avoids the potentially laborious process of heirs having to prove that a deceased’s habitual residency was in their country of origin.
These are usually done at the point of purchase and include various ownership structures (putting the property in the name of a child/ children), adopting specific matrimonial regimes or using clauses in the deed.
Other options
It is understandable that in the excitement of buying a property overseas the last thing you want to be planning for is your end. However, it’s worth getting the right advice up front, as soon as you plan to buy overseas.
Your tax, legal and wealth advisor will be able to give you the best advice for your jurisdiction. That may involve considering lifetime gifts rather than inheritance. Choosing the right ownership structure can also avoid problems down the line.
Why a will is a no-brainer
Bottom line is, having a will in place makes life a lot easier and stress-free for your loved ones. Besides protection against potential forced heirship, it cuts down on the bureaucratic paperwork that comes with dealing with cross-border probate. Less administration should mean less costs, thanks to fewer trips to the notary, less work for your solicitor and fewer bills for translation of documents.
Forced heirship from the children’s point of view
Forced heirship rules often concern overseas property buyers, particularly those in second marriages. But these laws were not designed to cause hardship. They exist to protect children from being unintentionally or unfairly disinherited, especially when family circumstances change later in life.
Protection in later-life remarriages
Late-life relationships can be emotionally fulfilling, but they can also create complex financial dynamics. Forced heirship is designed to prevent situations where:
- Children from a first marriage are excluded entirely
- Long-standing family expectations are overridden late in life
- Assets accumulated over decades are diverted away from direct descendants
From the children’s perspective, these rules offer reassurance that remarriage does not automatically erase their inheritance rights.
A question of balance
Forced heirship is not about punishing remarriage or limiting personal freedom. It is about balancing the rights of spouses and children, particularly in families with assets in multiple countries.
For overseas property buyers, understanding this perspective is crucial. With the right planning — including appropriate ownership structures and locally valid wills — it is often possible to protect a surviving spouse while respecting children’s legal rights.
The key is awareness. Forced heirship is not a loophole for children, nor a trap for spouses — but a system that reflects different cultural assumptions about family, fairness and inheritance.
Note, information in this article is provided for general informational purposes only and does not constitute legal advice. Always seek professional legal advice before making decision relating to inheritance law, estate planning and other related matters.
EU forced heirship rules in brief
| Country | Do forced heirship rules apply? | Who is protected? | What this means for a surviving spouse | Key risk for overseas buyers |
|---|---|---|---|---|
| Spain | Yes (with regional variations) | Children are strongly protected heirs | Often receives a right of use (usufruct) rather than full ownership | Children can inherit part of the property and may force a sale |
| France | Yes | Children are the main protected heirs | Protection has improved, but children’s rights still take priority | You cannot leave the entire property to a spouse if you have children |
| Italy | Yes | Children and spouse both have reserved shares | Spouse is protected, but not to the exclusion of children | Fixed shares can result in fragmented ownership |
| Portugal | Yes | Children and spouse are protected heirs | Spouse has inheritance rights, but children cannot be disinherited | Limited freedom to structure inheritance without planning |
| Greece | Yes | Children have strong reserved rights | Spouse inherits, but children’s shares are guaranteed | Blended families face particular complications |
| Malta | Yes (civil law influenced) | Children are protected heirs | Spouse protection exists but is limited | Overseas buyers often assume common-law rules apply |
FAQs
Forced heirship is the legal principle that a fixed portion of a person’s estate must pass to certain family members when they die, usually their children and sometimes a spouse. It limits complete freedom to leave assets however you wish, even if you have a will stating otherwise.
Forced heirship laws are national inheritance rules, common in civil law countries, that reserve part of an estate for protected heirs. These laws can override the terms of a foreign or UK will unless specific steps are taken, such as choosing the law of your home country in a locally valid will.
Forced heirship applies in most European countries. It is particularly relevant for overseas buyers in Spain (with regional variations), France, Italy, Portugal, Greece and Malta. Rules differ by country, but British and US buyers are often affected unless they plan carefully with specialist legal advice.
