The hereditary reserve corresponds to a part of the inheritance that legally belongs to certain heirs. This reserve portion is calculated on the entire estate upon the death of the person. A will, even a notarized one, can not in any case circumvent this obligation which protects the rights of the heirs reserving.
What is the hereditary reserve?
The hereditary reserve the minimum share of heritage (real estate and other) which must return legally to his heirs (they are called "reservers"). The heirs have the choice between giving up this right or making a claim.
At the same time, the deceased may bequeath the part of the inheritance that is not reserved (in this case the disposable portion) to one or more legatees of his choice. The calculation of the hereditary reserve and the available quota is made on the date of death by the notary taking into account the donations or donations-shares.
Who are the reserve heirs?
The heirs are the direct descendants, including children born of an adulterous relationship but who have been recognized. Attention, it must be emphasized that a child who has been adopted with the "simple" method can not become a reserved heir of his adoptive grandparents. The surviving spouse is also a legal heir, provided that the deceased has no descendants.
For their part, ascendants are not part of the heirs reservations. However, they may request that property donated to their deceased child (which leaves no descendants) be returned to them. In jargon, the "right of return" is mentioned and it can not exceed quarter of the estate.
The hereditary reserve, in practice
The value of the hereditary reserve depends on the situation of the deceased. If he leaves a child, he is entitled to half of his property. Two children are entitled to two thirds and if the deceased has more than three children, the ¾ of the inheritance return to these.
If the deceased wishes to bequeath property to his spouse, he must first take into account the hereditary reserve by respecting the rules described above. If the deceased has no children, his surviving spouse is entitled to a quarter (at least) of the property. At most, the spouse can obtain the available quota, the whole inheritance in usufruct or the ¾ in usufruct and ¼ freehold.
Finally, and in accordance with Article 929 paragraph 2 of the Civil Code, it should be emphasized that a heir to the reserve (provided he is of age) may well give up his share, via an authentic deed performed before a notary. This waiver may relate to all or a portion of the reserve.