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Hofstetter Advokatur for construction and planning law, SBA specialist lawyers in construction and real estate law.

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The legitimacy to bring an action for the division of the estate

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In her commentary, Domino Hofstetter shows the far-reaching consequences that a complete bypass can have for heirs of compulsory portions and combines this with valuable recommendations for the drafting of inheritance contracts and legal petitions: If, contrary to expectations, no inheritance is confirmed and the claimed share of the inheritance is not awarded, the assertion of the compulsory share must at least appear in the statement of grounds for the action. This applies in particular if the compulsory portion heir is not mentioned in the inheritance contract and the estate has been fully distributed. Heirs to a compulsory portion are therefore advised to always file a claim for a reduction of the compulsory portion (Die Legitimation zur Erbteilungsklage: "virtuelle Erben" und die Auslegung von Erbvertrag und Rechtsbegehren, Urteil 5A_765/2022 vom 24. April 2023, in: iusNet Erbrecht vom 28. August 2023, PDF in short form; full article [subscription required]).