Who can not be deprived of Ningbo will share? "must keep" system- Zhiheng Law Firm

To begin with, let’s state the conclusion: testamentary freedom is not absolute; it has its limits. An individual may dispose of their estate as they see fit; however, if there are heirs who are both incapable of working and have no source of livelihood, the will must reserve for them a necessary share of the inheritance. This share, which cannot be disposed of at will, is the “reserved portion.” Article 1,141 of the Civil Code establishes this as a mandatory rule in a single sentence: a will shall reserve a necessary share of the estate for such heirs. Who qualifies, how much should be set aside, when the determination should be made, and what happens if not enough is set aside—this article explains it all in one go.

1. What is a reserved portion: Who must a will leave a share to?

The “reserved portion,” also known as the “compulsory share” or “protected share,” refers to that part of the estate which, when the testator disposes of their property through a will, must be left by law to designated heirs and may not be freely disposed of. It is not a gift bestowed out of the testator’s kindness, but rather a duty imposed by law; it is not at the bequest of the heir, but a direct provision of the law.

Article 1141 of the Civil Code provides: “A will shall reserve a necessary share of the estate for heirs who lack the capacity to work and have no source of livelihood.” The legislative intent of this provision is clear: testamentary freedom is the principle, but such freedom has its limits. When the survival of a particular heir is already in jeopardy, the law cannot permit the testator to shift responsibilities that should properly be borne by the family onto society. Therefore, a will may make most arrangements regarding one’s estate, but it cannot completely sever the means of subsistence for an heir who is both financially and emotionally dependent.

It is necessary to distinguish testamentary freedom from testamentary restriction: the civil code allows natural persons to make wills to dispose of personal property (article 1133), withdraw or change wills (article 1142), but article 1141 is just a restriction on this kind of freedom, which protects not all heirs, but the weakest part of people. In Interpretation (I) of the Succession Chapter, the Supreme People's Court emphasizes: testamentary freedom is the principle, and restrictions are the exception; disputes over reserved portions must be strictly reviewed in accordance with the requisite elements.

2. Who can enjoy the reserved portion: must simultaneously meet the "dual lack" criteria.

The right to a reserved share is not determined by the degree of kinship or the closeness of familial ties, but rather by whether two strict conditions are met simultaneously: first, “lack of capacity for work,” and second, “no source of livelihood.”

The term “lack of capacity for work” refers to a situation where an heir does not possess, or only partially possesses, the ability to engage in independent labor and is therefore unable to earn the necessary income through their own work to sustain themselves. A typical scenario is when minors have not yet attained the capacity for work, as well as when individuals lose or partially lose their capacity for work due to old age, illness, disability, or other reasons. The term “lacking a source of livelihood” primarily refers to situations where an heir has no fixed salary or stable income and is unable to obtain the necessary means of subsistence from others or from society.

The key lies in the word "simultaneously." Those who lack only the capacity to work but have a source of income do not qualify; nor do those who lack a source of income but retain the capacity to work—since the latter can sustain themselves through their own labor, there is no need to preserve an inheritance for them. The law protects heirs who simultaneously lack both the capacity and the means.

The determination of “having no source of livelihood” should not be applied in an overly rigid manner; it does not require that there be absolutely no income whatsoever. In practice, the assessment typically takes into account a combination of factors: whether there is a relatively stable income, whether there is social medical insurance, whether there is a fixed residence, as well as the physical and financial circumstances of the spouse and children. Individuals whose income level is significantly below the local average should also be regarded as having no source of livelihood.

In practice, the most common “double-deficiency” cases fall into the following categories:

A minor child—lacking the capacity to work and, moreover, without an independent source of livelihood—falls squarely within the category of a compulsory share beneficiary.
Adult children who have lost their capacity to work—due to serious illness, disability, or other non-subjective reasons—are unable to maintain a normal livelihood and have long relied on the support of the deceased.
A spouse with no income—elderly and frail, without a pension or other stable source of income, and whose livelihood primarily depends on the deceased.
Parents who require long-term care—whether elderly or ill, unable to work and without any source of income—are likewise within the scope of protection.

One more point to note: the beneficiary of the compulsory share must be someone within the statutory heirs. Article 1127 of the Civil Code stipulates the order of statutory succession: the first order consists of the spouse, children, and parents; the second order consists of siblings, grandparents, and maternal grandparents. Furthermore, when first‑order heirs exist, second‑order heirs are not entitled to inherit and generally cannot claim a reserved portion; only when all first‑order heirs have renounced or forfeited their right of inheritance may second‑order heirs be entitled to such a reserved portion. As for the fetus, Article 1155 of the Civil Code contains specific provisions, which will be discussed separately below.

3. How much can be retained: how to determine the necessary inheritance share

Many people are concerned about “how much the mandatory share should be and whether there is a fixed proportion.” The answer is: The law does not prescribe a fixed ratio. Article 1,141 of the Civil Code only refers to a “necessary share of the estate” and does not specify one-fourth, one-third, or any particular fixed amount.

In the absence of a statutory ratio, courts exercise discretion in practice by taking into account the specific circumstances of each case, with primary considerations including: the overall value of the estate, the actual living needs of the heir, the local standard of living, and whether the heir has other sources of support. Where the estate is substantial, living expenses are high, and the local cost of living is elevated, the reserved portion will be correspondingly larger; conversely, it will be smaller.

It should be emphasized that the term “necessary” refers to the minimum level required to maintain a basic standard of living, rather than entitling the compulsory share beneficiary to benefits equivalent to their statutory inheritance share. It safeguards the right to life, not the equal division of an inheritance. So here are a few key points to keep in mind:

There is no fixed ratio—there are no rigid rules such as “one-third must be retained”; it is entirely at the discretion of the case.
In its deliberations, the court primarily considers three key factors: the value of the estate, the actual needs of the parties involved, and the local standard of living.
Uphold the minimum threshold—inheritance shares should be limited to meeting the basic living needs of heirs who face “dual deprivation,” and need not be excessively high.
Priority protection—Even if the estate is insufficient to satisfy all debts, a necessary portion of the estate shall first be reserved for such heirs (Article 1159 of the Civil Code).

It should also be noted that the reserved portion applies equally in cases of testamentary gifts. A bequest may not impair the rights of an “insufficient-estate” heir; if it infringes upon the reserved portion, the affected heir may, to the extent necessary to preserve such reserved portion, assert the invalidity of the bequest.

4. Determination of the time point: based on when the will takes effect.

Regarding the status of “lack of capacity to work and no source of livelihood,” which specific point in time should be used for determination? The law provides a clear answer: the relevant time is when the will takes effect. Article 25, paragraph 2 of the Interpretation on the Succession Chapter (I) stipulates: "Whether an heir lacks the capacity to work and has no source of livelihood shall be determined based on the specific circumstances of that heir at the time the will takes effect.""

Why? Because a will is an act of death, it does not take effect when it is made, and it has legal effect only when the decedent dies. Article 1121 of the Civil Code stipulates that inheritance commences upon the death of the decedent. In general, the time when the decedent dies is the time when the will takes effect. If the will is subject to conditions or a term, the effective date shall be determined in accordance with the terms of the will.

This timing rule leads to two lines of reasoning, both of which are worth careful consideration:

There was a time when the will was made, and then it was gone-although the heirs were "double-lacking" when the will was made, they already had the ability to work or the source of income at the beginning of the inheritance, and they were able to maintain their basic living, so they no longer had to keep their share, and the will did not need to be reserved for them.
Not at the time of making a will, and then there was -- when making a will, the heir had the ability to work or the source of livelihood, but it became "double lack" at the beginning of succession, which still belongs to the heir who should reserve the necessary share of the estate. If there is no reservation in the will, the content related to this part is still invalid.

The relevant point of reference for the determination is “when the will takes effect,” rather than “when the will was made.” This also serves as a reminder to testators: a will is not a one-time, permanent arrangement; property planning should be periodically reassessed in light of changes in the circumstances of the heirs.

5. What happens if the will does not cover everything: it is partially invalid, and can be supplemented as needed.

If a will fails to reserve the statutory share for an “absentee” heir, what are the consequences? Will the entire will be invalidated? No, it will not. The rule of “partial invalidity” applies here.

The first paragraph of Article 25 of the (I) on Interpretation of Inheritance stipulates: "If the testator does not retain the share of the estate of the heir who lacks the ability to work and has no source of livelihood, he should leave the necessary estate for the heir when dealing with the estate, and the remaining part can be dealt with by referring to the distribution principle determined by the will."

This passage contains three layers of meaning:

That portion is invalid—the testamentary disposition pertaining to the reserved share is void, but the entire will remains valid.
Deficiency Supplement — When handling the estate, first set aside the necessary portion of the inheritance for “double‑lack” heirs; this amount is deducted in advance.
The remainder shall be handled as before—after deducting the statutory share, the remaining portion shall still be distributed in accordance with the distribution principles set forth in the will, and the testator’s wishes shall continue to be honored.

that is to say, most of the arrangements of who the testator wants to leave the property to are still valid, only to cut out the piece of basic life for the "double lack" heir. In similar cases heard by courts in many localities, the prevailing approach is as follows: the will itself is deemed authentic and valid, but a necessary share must be reserved for eligible heirs, with the remaining assets being distributed among the other heirs in accordance with the will.

In addition, two relevant rules need to be distinguished: Article 26 of the (I) on the Interpretation of Inheritance stipulates that if a will disposes of the property of the state, the collective or others, this part is invalid, which means "no right to dispose", which is different from the mandatory part; Article 1159 stipulates that the division of the estate should pay off taxes and debts first, however, the necessary inheritance should be reserved for the "double lack" heirs-stating that the right to remain is preferred over ordinary claims and taxes, because it guarantees the right to survival, which should be given first priority.

6. Don't confuse the three systems: reserved portion, prenatal inheritance reservation, and statutory allowance from the estate.

in testamentary succession, there are three arrangements of "keeping a copy for others" that are easy to confuse. Their objects, conditions, and legal consequences differ from one another; the following provides a comparative explanation grouped by category.

Group 1: Compulsory Share (Civil Code Article 1141 + Interpretation I of the Succession Chapter, Article 25).

the object of protection-the person who "lacks both the ability to work and the source of livelihood" among the legal heirs.
Core condition: Both “dual deficiencies” must be satisfied simultaneously; the determination is made at the time the will takes effect.
Source of the share—compulsory reservation of a “necessary inheritance share” from the estate, with no fixed proportion.
Legal Consequences — If a will fails to reserve the required share, that portion of the will is invalid. A necessary share of the estate must first be set aside for the entitled party, and the remaining portion shall be disposed of in accordance with the will.

Group 2: Reserved portion for a fetus (Article 1155 of the Civil Code + Article 31 of the Interpretation I on the Succession Chapter).

Protected subject—fetuses that were already conceived but had not yet been born at the time inheritance commenced.
The core condition-as long as the interests of the fetus are involved, the fetus is deemed to have the capacity of civil rights (Article 16 of the Civil Code), and the share shall be reserved for it in the division of the estate.
Share Calculation – Treat the fetus as an ordinary heir and allocate one share based on the total number of persons participating in the division; for multiple fetuses, reserve multiple shares corresponding to their number.
Legal Consequences -- If it is not reserved, it shall be deducted from the inheritance inherited by the heirs; if the fetus dies after birth, its share shall be inherited by the heirs; if it is dead at the time of delivery, the reserved share shall be handled according to the legal inheritance.

Group 3: Testamentary Provision (Article 1131 of the Civil Code).

Protected persons—individuals other than heirs, including those who were financially dependent on the deceased and those who provided substantial care for the deceased.
Core condition-not on the premise of "double lack. The Civil Code has removed the requirement from the former Inheritance Law that an heir must be “incapable of working and without any source of livelihood”; now, as long as the heir was financially supported by the deceased, they may assert their right to inherit.
Source of share—“may be allocated as a proper portion of the estate,” with the specific amount, depending on the circumstances, potentially exceeding or falling short of the statutory share to which the heir is entitled.
Legal consequences—entitlement to a discretionary share, not a compulsory reserved portion; when the right is infringed, the individual may bring suit as an independent party.

The most intuitive difference between the three can be remembered as follows: what must be kept for protection is "the double lack of heirs in the family", which is mandatory; what the fetus keeps for protection is "the child who has not yet been born", which is also mandatory; what the estate takes care of is "the person who has the supporting relationship with the heir besides the heir", which is distributed to the heir as appropriate instead of necessity. The object is different, the condition is different, the effect is different, the will and the handling of inheritance should be seated separately.

7. Practical advice on making a will

Understanding the rules helps you avoid pitfalls. To ensure that a will both reflects your wishes and avoids partial invalidation due to mandatory inheritance rules, you can take several steps:

First, make a list and identify the heirs who face “double deprivation.”—Before drafting a will, carefully review all first‑order heirs: Are there any minor or disabled children, an income‑less spouse, or parents who require care? All items that meet the "dual deficiency" criteria must be marked separately.
reserve share and write it into the text of the will -- for the eligible heirs, reserve a part of the estate for them directly in the will, and write clearly that "reserve the necessary share of the estate for them". It’s better to leave a little extra than to leave it empty.
Keep enough but not too much-a share must be kept to maintain the basic needs of life, not the same amount as the legal inheritance share. Determine appropriate levels by integrating heritage value, living needs, and local conditions, while avoiding excessive constraints on other arrangements.
cover all personal property -- the will should cover all personal property as much as possible, including real estate, deposit, creditor's rights, intellectual property income and so on. The property not involved in the will will be treated according to the legal inheritance, which is easy to cause disputes.
Calculate the scope of disposition-the married can only dispose of their own share of the couple's joint property; the family's joint property can only dispose of their own part, and if necessary, analyze the property before making a will. Do not dispose of state, collective or other people's property, otherwise the part is invalid.
Keep an eye on change and keep up to date-the status of the heirs may change over time, and the property may be increased or decreased, lost or transferred. When the conditions are ripe to reexamine the will, or through a new legal way to change, to avoid leaving hidden dangers.
Preposition contradiction and communication-explain the arrangement of "double lack" heirs in the will, reduce the doubts of other heirs in the future, and make the will more able to stand the test.

8. Common misconceptions

Myth 1: "I will give my property to whoever I want."Freedom of testation is not absolute freedom. Article 1141 of the Civil Code is precisely the restriction on it: when the heir is "double lack", the will must reserve the necessary inheritance for him. Give it to whoever you want, provided that you do not cross this legal bottom line.

Misunderstanding 2: "If you donate all your property and send it to others, your family can't control it."If the decedent has heirs who are “double‑lacking,” even if all of the estate is bequeathed to a third party, it remains subject to the mandatory share provisions. The bequest shall not prejudice the rights and interests of such heirs, and the victim may, to the extent necessary, claim that the bequest is invalid. The freedom to donate and bequeath is the same as making way for a must-leave.

Misconception 3: “A reserved portion is equivalent to the statutory inheritance share.”"This is the most common misunderstanding. The required share is the "necessary share of the estate" and guarantees basic survival, not a fixed proportion equal to the statutory inheritance. It is usually lower than the statutory share of inheritance, and the specific amount is at the discretion of the court in conjunction with the case. To equate the two is misleading both to the testator and to the heir.

Misunderstanding 4: "You don't need to leave it when you make a will, and you definitely don't need to leave it in the future." The time of judgment is when the will takes effect, not when the will is made. At the time of the will, the heir has the ability to work, but at the beginning of the inheritance becomes a "double lack", the will still need to reserve the necessary share for it. As soon as the point changes, the conclusion may flip. Reference of

cases: In the case of dispute over the gift contract between Li Mou × 1 and Li Mou × 2 (involving the decedent Zhao Changwang, No. 35 of the Civil Judgment Compilation of Inheritance), the decedent signed the gift agreement with others before his death, which came into effect after a hundred years, and the court confirmed that the agreement was valid, however, it is clearly pointed out that the minor daughter of the decedent shall be protected by law (Article 19 of the former Inheritance Law) and the donee shall have the obligation to compensate. Trial Court: Beijing Shijingshan District People's Court Case No.: Shi Minchu Zi No. 015

80Compendium.

9. FAQ

Question 1: Under what circumstances must a will reserve a share for another person?

when the legal heir has the two conditions of "lack of labor ability" and "no source of income" at the same time, the will must reserve the necessary inheritance share for him. One of the two is indispensable, only one of which is not applicable must be retained.

Question 2: Can a person who is capable of working but has no income claim a reserved portion?

No. Such people can sustain themselves by their own labor, and there is no real necessity to preserve an inheritance for them. What must be kept to protect is "double lack", not simply "no income".

Question 3: Will is only given to one child. Can other children ask for a copy?

It depends on whether other children meet the "double deficiency". If they are capable of working and have a source of livelihood, the will may not need to reserve a share for them. Only in the case of "double lack" is the right to claim the necessary inheritance.

Question 4: Is there a fixed proportion of the must-keep?

No. The law does not stipulate a fixed proportion, which is determined by the court in combination with the value of the estate, the actual living needs of the heirs, the local basic living standard and other factors, so as to maintain the basic living needs.

Question 5: If you don't leave a will, you must leave a copy. Is the whole will invalid?

No. Only that part of the content related to the share that should be reserved is invalid, and the rest is still valid. When dealing with the estate, the necessary inheritance is left for the heirs of the "double lack", and the rest is dealt with according to the principle of distribution of the will.

Question 6: Are a fetus and a “dual-deficiency” heir the same thing?

No. The fetal reservation is based on article 1155 of the Civil Code, which protects the unborn fetus; the mandatory retention is based on article 1141, which protects the legal heirs of the "double shortage. Although they are based on different grounds and apply to different subjects, both constitute mandatory protections for wills and the administration of estates.

Practical experience of 10. lawyers

Many people think that making a will is my property and I will give it to whoever I want. This freedom actually has a bottom line. If there is a person among the heirs who lacks both the ability to work and the source of income, the will must keep a necessary inheritance for him. This share is called a must-keep share, which is imposed by law and cannot be freely disposed. A common misconception is that when he is an adult, he can ignore it if he has hands and feet or does not communicate with each other at ordinary times, but the key is not his emotional closeness, but whether he has both at the same time and only lacks the same. It is the most important thing to do before making a will to find out whether there are such vulnerable members in the family.

In terms of operation, judging whether you can enjoy the mandatory retention depends on two hard conditions being established at the same time: not having the ability to work independently and not having a stable source of livelihood. Minors, adult children who have lost their ability to work, elderly spouses with no income, and parents requiring long-term care are among the most common categories. Special attention should be paid to the judgment point when the will takes effect, that is, when the testator dies, not when the will is made. Some heirs are still in good condition when they make a will, but they have fallen ill and have no income when they die. At this time, they must keep a copy and make up for it. When making a will, it is suggested to clearly write out the share of such family members and keep enough. Don't expect to rely on family members to be conscious afterwards.

In practice, if there is not enough left in the will, the whole will not be voided, but the corresponding part is invalid and can be made up, but there is often a dispute over how much to make up. Therefore, instead of wrangling behind him, it is better to set the share clearly before his death: at the same time, please leave a statement of the obligee's status, income and medical insurance materials to prove that the necessary inheritance share is reasonable. If the heirs of the first order are all present, the second order will not be able to turn, and don't miss the special regulations for the fetus. After making a will, it is best to file it and update it in time with the changes of family situation, so as not to let a family member fall into double deficiency when he dies, but the will does not leave a hole for him.