Inheritance settlement

When a parent passes away and leaves behind children from a previous relationship, questions often arise about how the inheritance should be distributed. The rules for children born out of wedlock differ in several respects from the rules that apply when the deceased only has children with their current spouse or cohabitant.

In this article, we explain what rights special-needs children have, and what consequences this can have for the family.

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What are special needs children?

A child born out of wedlock is a child who is the biological or legal child of only one of the spouses or cohabitants in a relationship. This means that the child does not share parents with the deceased's current partner.

This could be, for example:

• Children from previous marriages
• Children from previous cohabitation
• Children born before current relationship

Legally, children of a special generation have the same inheritance rights from their parent as other children. The difference lies primarily in the timing of the payment of the inheritance.

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How much do special-generation children inherit?

Children are life heirs, and life heirs are entitled to a compulsory share of inheritance under the Inheritance Act.

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Obligatory share inheritance – what does it mean?

The compulsory inheritance consists of:

• Two-thirds (2/3) of the deceased's estate
• Limited to 15 times the National Insurance basic amount (15G) per child per parent

Parents cannot therefore disinherit their children through a will. They can only freely dispose of the remaining third of their assets.

This applies regardless of whether the child is a special child or a common child.

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Can a surviving spouse remain intestate?

This is where the most important difference between special-birth children and common-birth children arises.

The main rule in the case of only common children: If the deceased and the surviving spouse only have common children, the surviving spouse can, as a general rule, take over the estate intestate. The settlement of the inheritance is then postponed until the longest-living person dies.

When there are children of a different generation: If the deceased has children of a different generation, the surviving spouse cannot be intestate without the consent of these children.

Special needs children have the right to:

• Demand the inheritance be paid immediately
• Refuse to change
• Consent to postpone the inheritance settlement

Consent should always be given in writing to avoid later disagreements.

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What does unchangeable mean in practice?

Sitting in a state of disarray means that:

• Survivors take over the deceased's assets and debts
• The inheritance settlement is postponed
• The children only receive the inheritance when the intestate estate is terminated.

For children of a special generation, this can be a significant decision. By agreeing to intestate succession, they give up the right to receive the inheritance immediately, but retain the right to inherit at a later date.

It is important to be aware that values ​​can change over time. Both increases and decreases in wealth will affect the final inheritance settlement.

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Can a will change the inheritance rights of special-generation children?

A will can regulate the free third of the inheritance, but children of a special generation cannot be disinherited when it comes to the obligatory portion.

However, a will can give the surviving spouse greater rights within the limits of the law by determining separate property or other terms of inheritance. This is why many families with children of a different generation choose to create a will to avoid conflicts and ensure predictability.

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What applies to cohabitants and children of a special generation?

The rules are different if the deceased and the survivor were cohabitants.

A cohabitant has far weaker inheritance rights than a spouse, unless:

• There are children together
• A will has been created.

If the deceased has children from a different generation and no children with the cohabiting partner, the cohabiting partner will generally not inherit anything without a will. This can have major financial consequences, especially if the parties own a home together. Without a will, children from a different generation can claim their inheritance, which in the worst case scenario could lead to the home having to be sold.

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Summary

Special needs children have:

• Same right to compulsory inheritance as other children
• Right to demand immediate payment of the inheritance
• Right to refuse transfer

This gives extramarital children a strong legal position. At the same time, it can create demanding situations for the surviving spouse or cohabitant.

If you have a child with a special needs child – either as a parent or as a new partner – you should thoroughly familiarize yourself with the rules and consider legal advice. Good planning can help secure both family relationships and finances when the time comes.

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Do you need legal assistance?

Do you need legal help or advice in connection with inheritance or drafting a will? Contact our lawyers for a no-obligation conversation .

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When a loved one passes away, survivors face both emotional challenges and practical tasks related to the settlement of the estate. It is important to have an overview of the process to ensure a fair and efficient distribution of the deceased's assets.

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1. First steps after death

After a death, a death certificate is issued by the attending physician or hospital. This certificate is sent electronically to the Population Register, which registers the death. The relatives must then plan the funeral.

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2. Choice between private and public succession

The heirs must decide how the estate will be divided, privately or publicly:

• Private probate: The heirs themselves take responsibility for the distribution of assets and settlement of debts. This requires agreement among the heirs and that at least one assumes responsibility for the deceased's debts.
• Public probate: The court appoints an executor to handle the distribution. This may be necessary if the heirs cannot agree or want the court to administer the settlement.

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3. Deadlines to be aware of

There are several important deadlines in an inheritance settlement:

• 60 days: Within 60 days of the death, the heirs must inform the district court about who will assume responsibility for the debt and what form of succession has been chosen. The form is available digitally on the courts' websites.
• 6 months: Heirs must invoke the will before the district court within six months of becoming aware of the death and the contents of the will.
• 3 years: The deadline for requesting probate is three years from the date of death. After this, the court can only consider the estate if there are “strong reasonable grounds”.

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4. The Uninheritance Scheme

The surviving spouse or cohabitant may have the right to sit on the undivided estate, which means that the inheritance settlement is postponed. To take advantage of this arrangement, notification of undivided estate must be sent to the district court within 60 days of the death.

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5. Probate certificate

Once the district court has received the necessary documentation and declarations, a probate certificate is issued. This gives the heirs the right to dispose of the deceased's assets and carry out the inheritance settlement.

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6. Distribution of inheritance

The inheritance is distributed according to the Inheritance Act and any will. It is important to get an overview of the deceased's assets and debts, terminate ongoing obligations, and ensure a fair distribution among the heirs.

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7. Seek professional assistance

Inheritance settlements can be complex, especially if disagreements or ambiguities arise. In such cases, it may be wise to seek advice from a lawyer with experience in inheritance law to ensure a correct and fair process.

Navigating an inheritance settlement requires both legal knowledge and practical understanding. By being aware of applicable rules and deadlines, as well as seeking professional guidance when necessary, heirs can ensure a smooth and fair distribution of the deceased's assets.