Disinheritance in practice

What is disinheritance and how is it defined by law

Disinheritance is a unilateral legal act by a testator which deprives a forced heir—typically a child or their descendant—of the rights that would otherwise belong to them by law. More precisely, disinheritance excludes an heir from their right to a compulsory share, which is a legally protected minimum that a descendant cannot be denied.

To understand the practical consequences, it is necessary to distinguish between two concepts. A forced heir is a descendant (or, in certain situations, a grandchild) to whom the legal system automatically grants a right to a share of the estate, even if the testator did not mention them in the will at all.

The compulsory share is the minimum financial expression of this right—for a minor child, it is at least three-quarters of their statutory inheritance share, and for an adult descendant, it is at least one-quarter of their statutory inheritance share (under Section 1643(2) of the Czech Civil Code, hereinafter the "Civil Code"). Disinheritance removes or reduces these very rights.

In practice, this means that if you have a child and bequeath everything to your mother or partner in your will, the child can still claim their compulsory share—unless they are properly disinherited for a statutory reason. The absence of disinheritance thus protects descendants even if relationships deteriorate or the testator favors other persons.

Disinheritance is not an institution that serves as a tool for revenge or to enforce the whimsical will of parents. If a dispute over the validity of a disinheritance or the compulsory share is anticipated in a family, it is advisable to discuss the procedure and evidence strategy with a lawyer specializing in commercial and litigation disputes. The Civil Code, on the contrary, uses it very restrictively—as a corrective measure against descendants whose actions objectively threaten family assets or violate fundamental duties towards the testator.

Statutory grounds for disinheritance

Section 1646 of the Civil Code provides an exhaustive list, meaning it is explicit and cannot be expanded, of the grounds under which disinheritance is permissible. The testator cannot invent their own reasons, expand on them, or can the parties contractually agree on other reasons. The court is thus protected from claims that "we had some family agreement," "he didn't behave as he should have," or "I just thought so."

The descendant did not provide the testator with necessary assistance in times of need

The first ground is that the descendant failed to provide the testator with necessary assistance in times of need (Section 1646(1)(a) of the Civil Code). Need is understood to mean genuinely serious situations—not everyday life, household chores, or fluctuating needs. It refers to illness, old age, physical or health limitations, natural disasters, severe injuries, or other critical life situations.

It is crucial that there must be an objectively existing need. The court will assess whether the testator actually requested help, whether the descendant knew it was needed, and whether they could have genuinely provided it. Therefore, a descendant cannot be disinherited simply because they did not visit every day during an illness if someone else was caring for the testator and care was provided.

The situation is different if the descendant knowingly refused to help, even though they could have—for example, by refusing to provide financial support in a critical situation or refusing to care for a disabled parent. In such cases, the ground is more easily defensible.

The descendant does not show genuine and lasting interest in the testator

The second ground is the failure to show the genuine and lasting interest that a descendant should show (Section 1646(1)(b) of the Civil Code). Specifically, this refers to situations where the descendant does not care about the testator, does not communicate with them, does not visit them, or is indifferent to them. The word "lasting" must be emphasized.

However, this ground is one of the most scrutinized by judicial practice and hides several pitfalls. Courts have repeatedly and explicitly warned that if the testator themselves did not show interest in the descendant, the descendant's behavior cannot be considered a ground for disinheritance. When drafting a declaration of disinheritance and related arrangements, precise wording and handling of evidence are crucial in practice, which is where services for contracts and negotiations can help.

In other words, if the poor relationship is mutual or was initiated by the parent who now wishes to disinherit the descendant, the court will generally not recognize such a ground.

The court also considers actions intended to harm or make the testator's life difficult—if the descendant knowingly made the testator's life difficult, harmed them, filed false criminal complaints against them, or discriminated against them. In such cases, the ground is better substantiated.

The descendant was convicted of a crime demonstrating a depraved character

The third ground is that the descendant was convicted of a crime committed under circumstances demonstrating their depraved character (Section 1646(1)(c) of the Civil Code). Here, the law requires two things: (a) the existence of a final conviction and (b) that the act demonstrates the perpetrator's depraved character.

The key point is that it is not just about the existence of a final conviction, but specifically about the circumstances of its commission. A conviction for an unintentional mistake (e.g., involuntary manslaughter in a traffic accident) will generally not be sufficient.

Conversely, crimes committed in a cruel or particularly torturous manner, against protected persons (children, pregnant women, seniors), from base motives (profit, revenge, racial hatred), or with a particularly severe impact, may indicate depravity.

The court also considers the relative seriousness of the act and its impact on the testator. If the crime was less serious or committed under special circumstances, disinheritance may not be proportionate. Another open issue is a situation where the criminal record for the offense has been expunged after a certain period—in such cases, courts usually do not recognize the disinheritance.

The descendant leads a persistently dissolute life

The fourth ground is that the descendant leads a persistently dissolute life (Section 1646(1)(d) of the Civil Code). This refers to a long-term, recurring, and especially permanent pattern of behavior that is contrary to social norms. It involves deviating from common standards and a long-term trend, not just an isolated incident.

Typical examples include: long-term drug or alcohol addiction, repeated failure to pay child support for one's own children, repeated criminal offenses or disorderly conduct, prostitution or other socially unacceptable behavior, and completely squandering financial resources without securing a basic livelihood.

The key word is persistence. A one-time instance of drunkenness, potential involvement in criminal proceedings, or temporary financial problems will not be sufficient. The court must see a pattern, continuity, and long-term behavior that is so far outside the norm that a return to a normal life cannot be expected.

When assessing this, courts also consider whether the parents themselves contributed to this behavior—whether they failed to provide sufficient guidance during childhood or whether they modeled similar behavior themselves. If a child leads a dissolute life as a result of poor upbringing by the testator, the disinheritance may not be defensible.

The descendant is in debt or behaves prodigally, and there is a risk to the compulsory share of their descendants

Another ground is a situation where the descendant is so indebted or behaves so prodigally that there is a concern that the compulsory share will not be preserved for their descendants (i.e., the testator's grandchildren) (Section 1646(1) of the Civil Code, last sentence).

This is a new provision in the Civil Code effective from 2014, which did not appear in the previous legislation. The purpose is to protect family assets for the next generation—specifically, to prevent the testator's assets from disappearing in the execution or insolvency proceedings of a prodigal descendant.

An important distinction: Disinheritance on this ground must be carried out in such a way that the compulsory share of the indebted or prodigal heir is bequeathed directly to their children. The testator cannot simply disinherit the descendant—they must also make an additional disposition (this can be in the same document) bequeathing the compulsory share to the grandchildren. If the disinherited descendant has no children, this ground for disinheritance cannot be used at all.

In practice, this ground is met when a descendant is in long-term debt repayment, has ongoing enforcement proceedings, is in insolvency, or has a share in real estate subject to enforcement. But be careful—the mere existence of debts is not automatically interpreted by the court as a reason for disinheritance. The court examines the specific circumstances: how the debtor got into debt, their behavior towards resolving it, and whether they are trying to remedy the situation. If they have filed for insolvency and are trying to resolve matters in accordance with the law, disinheritance may not be proportionate.

Prodigality is assessed similarly—it involves a long-term pattern of wastefulness, reckless spending, and poor financial management that objectively threatens the preservation of assets for the next generation.

Inheritance matters may require the cooperation of both a lawyer and a notary. Therefore, depending on the nature of their case, ARROWS recommends that clients consult with a notary and collaborates with several verified notary offices. These include, for example, notary Mgr. Silvie Dohnalová or Mgr. Tomáš Ostrožlík, in addition to whom we also cooperate with other notaries. Clients can thus choose a suitable notary from our list of collaborating offices based on their location or where they need notarial services. For important or more complex matters, a notary can, by agreement, also come directly to the ARROWS law firm, and the matter can be handled jointly in one place.

The descendant is unworthy to inherit

A special ground permitted by the Civil Code in Section 1646(2) is that the descendant is unworthy to inherit. Unworthiness to inherit (unlike disinheritance, which is an act of the testator's will) is an automatic exclusion from the right to inherit.

It applies to persons who have committed an intentional crime against the testator, their ancestor, descendant, or spouse, or who have committed a reprehensible act against the testator's last will (blackmail, threats, destruction of the will, etc.) (see Sections 1481–1483 of the Civil Code).

Disinheriting a descendant who is unworthy to inherit makes sense mainly to extend the effects to the disinherited person's own descendants—that is, to exclude them from the inheritance as well. If the testator does not do so, the unworthiness of the descendant would not automatically apply to their descendants, who would then inherit in their place.

Risks and mistakes to avoid

How to proceed with disinheritance: formal requirements and drafting

Disinheritance is not just a thought—it is a legal act that must meet strict formal requirements. The absence of these requirements renders the disinheritance invalid, and the disinherited descendant can then claim their compulsory share or even more.

Form of the declaration of disinheritance

Disinheritance is carried out through a declaration of disinheritance (formerly called a "deed of disinheritance"). This declaration can be drawn up in three ways (according to Sections 1532 et seq. of the Civil Code, similar to a will).

The declaration can be drawn up in three ways. The testator can write the document entirely by hand, date it, and sign it by hand.

Alternatively, if the testator does not write the document themselves (for example, due to a physical disability), they can sign it by hand in front of two witnesses present at the same time, explicitly declare that the document contains their last will, and have the witnesses sign it.

The safest form is with a notary, where the notary drafts the document, reads it to the testator, and the testator approves and signs it.

It is crucial that the declaration of disinheritance is made in the same manner as a will. If the testator simply said "I disinherit my descendant" in a conversation or wrote an unsigned email, such an act has no legal effect.

Mandatory requirements

For a declaration of disinheritance to be formally correct, it must contain the date of drafting (for a handwritten document, the specific day), the identification details of the testator and the disinherited person (name, surname, date of birth, address, possibly personal identification number), a clear expression of the intent to disinherit, and the testator's handwritten signature at the end of the document.

Must a reason be stated?

Here lies a crucial and often overlooked rule: the testator does not have to formally and explicitly state the reason for disinheriting the descendant in the declaration (according to Section 1647 of the Civil Code). This means it is sufficient to write "I hereby disinherit my descendant (name of descendant)"—and it is legally relevant.

However—and this is an important "but"—not stating the reason increases the risk. If the disinherited descendant disagrees with the disinheritance, they can file a lawsuit and challenge in court whether a statutory reason even existed. In that case, the other heirs or the court must go through a complicated process to prove that one of the statutory grounds was met. And if it is not proven, the disinheritance is considered invalid—and the disinherited descendant receives their compulsory share.

Stating the reason is therefore desirable—it protects the other heirs and reduces the risk of a lawsuit. When the testator writes "I disinherit my descendant (name of descendant) because they failed to provide necessary assistance in my time of need when I was seriously ill and they abandoned me without reason," the other heirs are in a better-prepared position. If a dispute arises, they will be better able to defend themselves.

Common situations and procedural details

Can disinheritance be partial? Yes. The testator does not have to completely disinherit a descendant—they can merely reduce their compulsory share. For example, instead of being completely disinherited, the testator can decide that the descendant will receive only half of their compulsory share. This is legally permissible and often more practical when the relationship is not completely broken.

What if the disinherited descendant dies before the testator? If the disinherited descendant dies before the testator, then their children (the testator's grandchildren) inherit in their place, unless they were also explicitly disinherited (according to Section 1648(1) of the Civil Code). Thus, disinheritance does not automatically transfer to the descendants of the disinherited person, unless the testator explicitly states in the declaration of disinheritance that the disinheritance also applies to the descendants of the disinherited person.

Disinheritance and other heirs. When one descendant is disinherited, their statutory share becomes part of the estate, which is divided among the other heirs who inherit in that particular inheritance class (most often among the testator's other children). The assets are thus divided among a smaller number of heirs, thereby increasing their shares.

Final summary

Disinheritance is not merely a family decision but a legal act that must be carried out with the utmost care and in accordance with the law. A testator has the right to decide on their estate autonomously—but only within the framework of the legal regulations that protect forced heirs. This protection stems from the institution of the forced heir and the compulsory share.

In practice, it often happens that people underestimate the formal requirements or choose the wrong grounds. The result is legal disputes that last for years, cost tens of thousands of crowns in legal fees, and never lead to a satisfactory outcome. Many of these problems could have been avoided if the testator or their family advisors had approached the preparation of the disinheritance with sufficient time and expert guidance.

Disinheritance is meaningful and justified when it is based on real, legally recognized grounds. If you decide to use it, you should be sure that your will is correctly expressed and legally defensible. The lawyers at the Prague-based ARROWS law firm at consultation@arws.cz will help you with the preparation, review, and ensuring that your last will is respected and legally sound.