Insights

Can Ningbo fetus inherit the inheritance? How to calculate the reservation

Ningbo Author：LuXu WANG

In Ningbo, perhaps the most devastating blow a family can endure is the sudden passing of its breadwinner, especially when his wife is still carrying their child. At times like these, when people sit down to discuss inheritance, most think of their spouse, parents, and children, often overlooking the unborn child. Let’s put the conclusion first:As long as the child is born alive in the future, the law will “reserve a share” for them, and this share of the inheritance may not be distributed in advance to other heirs.The original text of Article 1155 of the Civil Code of the People's Republic of China states: "When dividing an estate, a share for the fetus shall be reserved." If the fetus is delivered as a stillbirth, the reserved share shall be handled in accordance with statutory succession."

Now, let’s clarify this rule.

1. Why does a fetus have the right to inherit?

According to the general principles of law, civil legal capacity begins at birth and ends upon death (Article 13 of the Civil Code); therefore, a fetus that has not yet been born does not appear to have the capacity to be an heir. However, inheritance has its own unique characteristics: the blood relationship between a child and the deceased is established even when the child is still an unborn fetus. If such children are uniformly excluded on the ground that they have not yet been born, by the time they are born the estate may already have been entirely distributed, rendering any rights merely a hollow formality. For this very reason, the law has made an exception.

Article 16 of the Civil Code, located in the General Provisions section, is the “protection of fetal interests” provision: “In matters involving the protection of a fetus’s interests, such as inheritance and acceptance of gifts, the fetus shall be regarded as having civil rights capacity.” However, if the fetus is delivered as a stillbirth, it has never possessed civil rights capacity from the outset. This provision imposes a condition on the capacity of a fetus to hold rights:A child who is born alive is deemed to have had legal capacity from the moment of birth; if born stillborn, it is deemed never to have had legal capacity.Therefore, the fetus’s right of inheritance is a “conditional and retroactive right”—it is not an immediately vested right, but rather an expectancy that the law temporarily preserves, contingent upon the event of birth for its ultimate realization.

The section on inheritance further translates the principles of the General Provisions into concrete operational guidelines. Article 1,155 of the Civil Code stipulates that, upon the division of an estate, a share of the inheritance shall be reserved for any unborn child. The term “shall” here is mandatory, meaning that regardless of how the heirs agree among themselves or what the will stipulates, as long as there is a fetus, a share must first be reserved for it when the estate is divided. It is used in conjunction with Article 16 and Article 1,127 regarding the statutory order of inheritance: a fetus falls within the category of “children” among the first‑order heirs, placing it on an equal footing with legitimate children, illegitimate children, adopted children, and stepchildren who have been supported.

It should be noted that the law only protects “property interests such as those arising from inheritance or gifts”; it does not thereby recognize the fetus as a legal person in all respects. A fetus may inherit and receive gifts, but it cannot enter into contracts or assume debts.

2. How is the reserved portion calculated?

Calculating the “reserved portion” boils down to a single sentence:In accordance with statutory succession, the fetus is treated as an existing heir, and its share of the inheritance is calculated accordingly. Article 155 of the Civil Code only says "keep the inheritance share of the fetus", and the specific share still needs to go back to the legal inheritance rules such as Article 130-the share of heirs in the same order is generally equal; the heirs who have special difficulties in life and lack the ability to work should be taken care of; the heirs who have fulfilled the main support obligations or live with them can be divided more; those who have the ability and conditions but do not fulfill their maintenance obligations should be divided or less.

Therefore, in practice, the algorithm consists of three steps. First, set aside any property that does not belong to the deceased: jointly owned marital property must first be divided, with one half going to the surviving spouse (Article 1153), and the shares of other family members must be separated from any family-owned property. Step two: Determine the scope of the first‑order heirs, which includes the spouse, children (including a fetus), and parents. The third step is to treat the fetus as one of the children, calculate the share he deserves and keep it. The remaining part is distributed among the remaining heirs according to the rules.

Let’s take the most common example. Mr. Zhang of Haishu, Ningbo, died of illness without leaving a will. After marriage, he and his wife, Ms. Wang, shared a property and savings. The joint property of the husband and wife totaled 2.4 million yuan. Mr. Zhang's father and mother were still alive in the family. At this time:

  • First, one-half of the couple’s joint property—namely, RMB 1.2 million—is set aside and belongs to Ms. Wang; the remaining RMB 1.2 million constitutes Mr. Zhang’s estate.
  • Step 2: The first-order heirs are the spouse, Ms. Wang, the unborn fetus, and Zhang’s parents—four individuals in total.
  • Step 3: In principle, the shares are equal. The fetus is entitled to 120 ÷ 4 = RMB 300,000, which shall be held in trust by Ms. Wang as the legal representative. The remaining RMB 900,000 shall be distributed among Ms. Wang, Mr. Zhang’s father, and Mr. Zhang’s mother. If Ms. Wang lived with the deceased and fulfilled the primary duty of support, or if Mr. Zhang’s parents had other sources of income, the court may also make adjustments at its discretion; however, The 300000 yuan of the fetus must be set aside first and cannot be divided in advance.

This idea is consistent with the actual judgment of the court. In inheritance case No. (2018) Qian 0622 Min Chu 752, heard by the People’s Court of Kaiyang County, Guizhou Province, the decedent, Mr. Yu, had been survived by his wife, Ms. Zhao, who was approximately 14 weeks pregnant at the time of his death. Upon calculation, the total value of the couple’s joint property is RMB 345,500; half of this amount, or RMB 172,750, constitutes the estate of the deceased. The heirs include the deceased’s father, mother, spouse, adopted daughter, and the unborn child, totaling five parties. The court did not simply divide the estate equally; rather, it took into account that the wife and the adopted daughter had lived with and provided substantial support to the deceased, and thus were entitled to a larger share. The court ruled that the wife shall pay a total of RMB 50,000 to the deceased’s parents, and A share of the inheritance amounting to RMB 25,000 is reserved for the fetus and shall be held in trust by its mother, Ms. Zhao.. It is evident that the base for calculating the reserved portion is the decedent’s personal estate, with the specific amount to be determined by the court in light of the circumstances regarding support; however, setting aside a separate share for a fetus is non-negotiable.

There is another situation that is easily overlooked-the fetus in subrogation inheritance. Article one thousand one hundred and twenty-eight of the Civil Code stipulates that if the child of the decedent dies before the decedent, it shall be inherited by the lineal blood of the child of the decedent. For example: Lao Zhang has three sons. The third son died before Lao Zhang in a car accident. At this time, the third daughter-in-law Xiao Li was pregnant for more than three months; Lao Zhang also died of a sudden illness in the same year. If Old Zhang’s eldest and second sons were to divide the inheritance directly, they would be infringing upon the rights of the unborn child—Old Zhang’s third son would have been entitled to a share of the estate, and the fetus in Xiao Li’s womb, as a direct descendant of the third son, could step into that position by way of substitution and inherit the share to which the third son was entitled. It should be noted that the subrogation fetus takes the "position" of the deceased father and gets the share that the father deserves, instead of being counted as a head on average with uncles.

Two outcomes after the delivery of the 3. fetus

The reservation is merely a “temporary hold”; the ultimate allocation of the share will depend on the child’s condition at birth. Article 31 of the Interpretation (I) of the Supreme People's Court on the Application of the Inheritance Code of the the People's Republic of China Civil Code clearly states several outcomes: if the share of the inheritance that should be reserved for the fetus is not reserved, it shall be deducted from the inheritance inherited by the heirs; The share of the inheritance reserved for the fetus, such as the death of the fetus after birth, shall be inherited by its heirs; If the fetus is dead when delivered, inherited by the heirs of the decedent.

The first type is a living body at the time of delivery. As soon as the child is born, the conditional achievement that he "is deemed to have the capacity for civil rights" shall be determined to belong to him and shall be managed and protected by his legal representative. Even if the estate has already been divided, pursuant to Article 31, the portion due to him shall be deducted from the shares inherited by the other heirs and returned to him.

The second type is a dead body when it is delivered. According to Article 16 of the Civil Code, its capacity for civil rights does not exist from the beginning. Article 155 further stipulates that the reserved share is "handled in accordance with legal inheritance"-that is to say, this share is not given to the child, but is put back into the heir's estate and inherited by the heir's heirs (spouse, parents, other children, etc.) according to law. In the example given earlier, if the fetus is stillborn upon delivery, the 300,000 yuan would be reintegrated into Mr. Zhang’s estate and redistributed among Ms. Wang, Mr. Zhang’s father, and Mr. Zhang’s mother.

The third type is being born alive and then dying.When the child was born alive, they already acquired that inheritance; upon their subsequent death, this property becomes the child’s own estate, to be inherited by their legal heirs (typically the mother, but potentially including paternal relatives as well). This point is crucial in practice: even though both involve the loss of a child, the disposition of the estate differs significantly between a stillbirth and an infant who dies shortly after birth. As long as the child was alive at the time of birth, the property has already passed to the child and will be distributed according to the child’s inheritance rules, rather than being simply “returned to the man’s family.”

4. What happens if the will does not reserve a share for the fetus?

Some of the inheritors made wills before their lives and arranged their property clearly, but they didn't leave anything for their unborn children. Can all of this will be counted? No.

Article 1,241 of the Civil Code stipulates that a will should reserve the necessary share of the estate (commonly known as "must-leave share") for the heirs who lack the ability to work and have no source of livelihood. Although the fetus is unborn, it is regarded as having the right to inherit the interests according to Article 16 and belongs to the legal heir. The will excludes him cleanly, essentially depriving him of the share reserved by law for the fetus. The guiding case No. 50 of the Supreme People's Court, "Li Mou, Guo Mou Yang v Guo Mou and Tong Mou Inheritance Dispute", established the rule of judgment: the will made by one of the spouses did not reserve the share of the estate for the fetus, and the content of this part of the will was invalid due to violation of the provisions of the original Inheritance Law on mandatory retention. When dividing the estate, the inheritance share shall be reserved for the fetus. In this case, Guo Mou-shun’s will bequeathed all of his real estate to his parents, without reserving any share for the fetus, Guo Mou-yang, conceived through artificial insemination. Based on this, the court ruled that the portion of the will failing to reserve a share for the fetus is invalid and that a share must be reserved for the fetus during the distribution of the estate.

To understand “partial invalidity” in this context: it does not mean that the entire will is invalidated; rather, the statutory reserved share for the fetus is first set aside pursuant to Article 1,155, and the remaining portion is then distributed in accordance with the principles stipulated in the will. If the will disposes of the property of the state, the collective or another person, this part is also invalid according to Article 26 of the (I) of Interpretation of Succession. Therefore, the correct order is:First, reserve the fetus’s share; then, refer to the will; finally, resort to statutory succession as a fallback.

5. other scenes that need to be reserved for the fetus

the protected interests of the fetus are not only one kind of "legal inheritance", but also several scenes that are easy to be ignored.

One is a bequest. Article 16 of the Civil Code explicitly includes “acceptance of gifts” within the scope of protection for the interests of a fetus. The testator may make a will bequeathing specific property to an unborn child, to be administered as a bequest upon the child’s birth. At this time, attention should be paid to the time limit rule of the bequest: according to article 124, the bequestee shall make an acceptance or waiver within 60 days after knowing the bequest, and if it is not expressed at the end of the term, it shall be deemed to be waived. A fetus is unable to express its own intent; in practice, the mother acts as its legal representative to express such intent on its behalf and to accept it on its behalf.

The second is tort death compensation. If the male party dies as a result of a traffic accident, work-related injury, or other such incidents, his family will receive compensation for death, as well as damages for emotional distress, among other payments. Strictly speaking, death compensation is not part of the estate; it is compensation paid to the deceased’s close relatives. When distributing such compensation, it is not divided mechanically according to statutory inheritance shares, but rather takes into account factors such as the degree of cohabitation and the nature of the support relationship between each beneficiary and the deceased. However, in judicial practice, if the deceased’s wife was pregnant at the time of the deceased’s death, the court will set aside a corresponding portion of the death compensation and the living expenses for dependents to be allocated to the unborn child when dividing these amounts. In other words, although a posthumous child has not yet been born, its interests as a future dependent must nonetheless be given priority.

Operations in 6. Proceedings

Can a fetus, which has not yet been born, bring a lawsuit on its own? The answer is no—it cannot do so in its own name—but this does not preclude the protection of its rights. In practice, this is typically handled as follows:

  • The mother shall participate as the legal representative.A fetus cannot personally engage in litigation; its mother, acting as the legal representative, may assert its rights and participate in inheritance division proceedings on its behalf. The share reserved by court order is also held in trust by the mother.
  • Request the court to reserve it for now during the division. In an action for the division of the estate, the mother may request the court to order directly to retain the share of the inheritance of the fetus in accordance with article 155; the court will set aside this share before disposing of the rest of the estate.
  • Postpone the division if necessary. Where the fetus is about to be born and the facts are clear, a party may also request the court to temporarily suspend proceedings with respect to the disputed portion, pending the child’s birth and confirmation of its survival status, after which the matter can be resolved; if waiting is not feasible, the corresponding share must nonetheless be reserved in advance.
  • Make good use of preservation measures. In practice, some courts have accepted pre-litigation applications for property preservation filed in the name of a fetus by its pregnant mother. If the other party has any signs of transfer or sale of the estate, it shall apply for preservation as soon as possible.
  • Make sure all the evidence is prepared. The materials that prove the fact of pregnancy and fetal survival are very important, including prenatal examination report, hospital filing data, ultrasound examination records, etc., which are used to prove the existence and gestational age of the fetus.

One more point: When the estate has already been divided and the fetus's share has been omitted, according to Article 31 of the "Interpretation (I) of the Succession Chapter," the corresponding portion should be deducted from the shares inherited by the other heirs. Therefore, after the child is born (or by the mother on the child’s behalf), they are fully entitled to claim the return of such funds.In addition, according to Article 30 of the (I) of Interpretation of Inheritance, when the court hears an inheritance case, if it knows that there is an heir and cannot notify it, the spirit of this rule is also applicable to the protection of the fetus.

7. the difference between "reserved portion" and "must-keep portion"

These two words are often mixed. In fact, they are two parallel systems with different bases, different objects and different effects.

  • The legal basis differs. The "reserved part" comes from Article 155 of the Civil Code and is specially designed for the fetus. The "mandatory part" comes from Article 1,191 and is aimed at specific heirs.
  • The protection object is different. The object of the reservation is the unborn fetus; the object of the necessary reservation is the heir who "lacks the ability to work and has no source of income", that is, the so-called "double-no" people, such as the close relatives who are seriously ill, disabled, old and have no income.
  • The applicable conditions differ. The reserved part does not ask about the economic status of the fetus, as long as it is a fetus. The required part requires both "lack of working ability" and "no source of income" to be met, and according to the second paragraph of Article 25 of the (I) on Interpretation of Succession, whether this condition is met is determined according to the specific circumstances of "when the will takes effect.
  • The legislative purposes differ. The reserved portion protects the fetus’s expectancy of inheritance after birth, ensuring that this right does not lapse simply because the individual has not yet been born; the compulsory share, on the other hand, safeguards the basic livelihood of vulnerable heirs, preventing testamentary dispositions from being exercised so absolutely as to place certain heirs in dire straits.
  • The two will intersect. If, after birth, the fetus is in a state of “lack of capacity to work and no source of livelihood,” and the will does not reserve a share for it, the claim for a reserved portion may still be asserted pursuant to Article 1,141. Conversely, even if a will provides for the fetus, if the share is clearly insufficient to sustain its basic livelihood, it may still be adjusted in accordance with the mandatory reserved portion rules.

Key Points of Judgment Reference: Guiding Case No. 50 of the Supreme People's Court The Case of Inheritance Dispute between Li Mou and Guo Mou Yang v. Guo Mou He and Tong Mou The Trial Court: People's Court of Qinhuai District, Nanjing City, Jiangsu Province Case No.: [2006] Qin Min Yi Chu Zi No. 14 Key Points of Judgment: There is no inheritance share reserved for the fetus in the will made by the husband and wife, the contents of this part of the will shall be invalid due to violation of the provisions of the law on mandatory retention, and the share of inheritance shall be reserved for the fetus when the estate is divided. Source of the case: The Tenth Batch of Guiding Cases of the Supreme People’s Court (issued on April 15, 2015).

8. Frequently Asked Questions

Question 1: Is a fetus considered an heir even before it is born?It is calculated based on the interests of inheritance. Article 16 of the Civil Code stipulates that a fetus is “deemed” to have civil rights capacity and enjoys the same inheritance qualification as adult heirs; however, if the fetus is stillborn upon delivery, its capacity for rights never existed from the outset, and the reserved share reverts to statutory succession.

Question 2: Who is responsible for safeguarding the fetus’s share, and who speaks on its behalf?To be held and claimed on behalf of the minor by the mother as the legal representative. The mother is both a first-order heir and the guardian of the fetus; in practice, it is most common for her to act as the administrator, and court judgments typically follow this approach.

Question 3: How are twins and multiple births counted?Retain according to the actual number of fetuses. For triplets, three shares should be allocated; they cannot be counted as “one child” only, otherwise the shares of the other children would be encroached upon.

Question 4: The estate has already been distributed—can it still be recovered?Yes. According to Article 31 of the Interpretation (I) of the Succession Chapter, any share that should have been reserved for a fetus but was not shall be deducted from the inheritance received by the other heirs. After the child’s birth, the claim for recovery is legally justified.

Question 5: If a fetus dies shortly after birth, to whom does the inheritance belong?As long as the child is born alive, they have already acquired that inheritance, which immediately becomes their own property; upon the child’s death, it is inherited by their legal heirs, typically on the mother’s side, rather than simply being “returned to the man’s family.”

Question 6: Does an illegitimate posthumous child have a share? Can the man’s parents disclaim paternity?I’m in. In statutory succession, “children” include non-marital children and are treated on an equal footing with marital children. As long as the parent–child relationship with the deceased can be established through means such as a paternity test, an illegitimate posthumous child likewise enjoys inheritance rights, and no one may deprive them of such rights on the ground that the parents were not married.

9. Practical Insights from a Lawyer

When the family’s breadwinner suddenly passes away, and the wife is still pregnant, most families, when discussing inheritance, tend to think only of the spouse, parents, and children, often overlooking the unborn child. The law’s stance is clear: as long as the child is born alive in the future, a share must be reserved for them in advance, and this share may not be distributed to others ahead of time. When dividing an estate, a share of the inheritance must be reserved for a fetus; this is mandatory and is not affected by the terms of the will or any agreements among family members. First, we must acknowledge the fact that there is a fetus who will be entitled to a share; this is the prerequisite for all subsequent divisions of the estate.

In terms of procedure, how is the reserved share calculated? The key is to treat the fetus as an already‑existing heir. The first step is to divide half of the common property of husband and wife to the spouse, and the common property of the family to other people to determine the net estate of the deceased. The second step is to put the spouse, children including the fetus and parents in the first order, and the fetus is one of the children. The third step is to calculate his share according to the general equality and keep it. The mother will take care of it as the legal representative, and the rest will be distributed among others. If a will fails to reserve a share for a fetus, that portion shall be distributed according to statutory succession, and the fetus shall still be entitled to its rightful share.

During negotiations and when avoiding pitfalls, keep a close eye on the delivery stage. If the fetus is stillborn, the reserved share reverts to the statutory heirs and is redistributed, and any funds previously held in trust for the fetus must be returned; if the fetus is born alive, the share vests in the child. In practice, do not distribute the unborn child’s share of the inheritance before they are born, nor exclude the fetus from the will. In cases involving multiple children or elderly parents, even if the shares need to be adjusted on a case-by-case basis, the reservation of the unborn child’s share must remain the non-negotiable minimum. In the event of litigation, the mother should prepare the pregnancy and childbirth certificate and the birth medical certificate to establish the fact that the fetus existed and was born alive; this constitutes the most direct evidence for asserting the reserved portion.