Can you disinherit your children?
It is possible to disinherit your children, but there are limits. You don't have total freedom to leave your assets to whoever you like. Specifically, each child has the right to a minimum share in the estate called a ‘reserve’.
The reserve
Your children's reserve is equal to half of your assets, regardless of how many children you have. If you have two children, then they each have the right to a quarter of your assets.
If you're married, then your children receive bare ownership of this reserve, while your spouse inherits usufruct for your whole estate. In any other scenario, your children inherit this share with unrestricted ownership.
Calculation of the reserve
More is taken into account than just the assets you leave behind when you die. Previous gifts or life insurance payouts are also notionally included as part of your assets once any debts have been deducted. The combined total is considered the 'notional estate'. This notional estate is then used to calculate the reserve and the available share.
Value of your gifts
When working out the notional estate, the value at the time the gift was given is used, indexed to the date of death.
This valuation can vary if the recipient only received bare ownership.
For example:
You leave behind a family home worth 400 000 euros and a portfolio worth 600 000 euros.
You previously gifted your son a house worth 180 000 euros while your daughter received a cash sum of 180 000 euros. These gifts are included in the notional estate, and their value is indexed to the date of your death. In this example, we'll assume that the gifts worth 180 000 euros are indexed to 200 000 euros.
The notional estate is therefore:
assets upon death (family home + portfolio): 1 000 000
+ gifts (indexed): 400 000
= 1 400 000
Your children are therefore collectively entitled to at least half of this notional estate (700 000 euros). They are each entitled to 350 000 euros. They have both already received 200 000 euros as a gift. This means that they are both still entitled to at least 150 000 euros of your estate upon your death. The rest of your assets (700 000 euros) can be left to whoever you like.
What happens if your child doesn't at least receive their reserve?
Your child can claim their reserve in a process called 'claiming for abatement'. Anyone who has received a share of your estate or a gift from you will have to compensate the aggrieved child with a sum of money.
This abatement is not compulsory and doesn't happen automatically. Your child must make the decision and take the necessary steps themself.
If your child is aware that their reserve has been affected but does not claim for abatement, this claim expires once the handling of your estate has concluded.
This is considered to be the case once all assets have been settled and distributed among the heirs.
If your child is not aware that their reserve has been affected (e.g., because the division of the estate took place without the supervision of a notary public and therefore a notional estate was not established), then they can still claim for abatement after the handling of your estate has concluded, up to a maximum of 30 years after your death.
Can you make arrangements with your child before you die?
If your child agrees, you can (partially) disinherit them. In any case, your child can also decide not to claim their reserve after your death. Alternatively, you can both draw up a contract of succession before your death in order to establish the details.
For example: you gift 100 000 euros to your son and 300 000 euros to your daughter who is facing financial difficulties. By drawing up a contract of succession, you can agree with your children that your son waives the claim for abatement.
Conclusion
You cannot completely disinherit your child unless they agree to it. When making plans, take into account the minimum share of inheritance your child will be owed.