[Direct answer]In the Beijing area, when dividing inheritance, a share of the inheritance should be reserved for the fetus. According to Article 1155 of the Civil Code of the People's Republic of China, when dividing inheritance, a share of the inheritance should be reserved for the fetus; if the fetus is stillborn at the time of delivery, the reserved share shall be handled in accordance with statutory inheritance. This means that as long as the fetus is already in the womb at the time of the commencement of inheritance, a corresponding share should be reserved in advance, and the ownership of the share will be determined after the fetus is delivered: if the fetus survives, the share will belong to it; if the fetus is stillborn, the reserved share will return to the estate and be redistributed in accordance with statutory inheritance. In the case of a will, according to Article 1141 of the Civil Code, the will should also reserve a necessary share for such heirs. In practice, it is necessary to actively claim the reserved share from the court or other heirs.

1. Problem background and typical scenarios

When the decedent dies and his or her spouse is pregnant, the division of the estate often leads to dilemmas: whether to set aside a share for the unborn child, how much to set aside, and who should custody it. Typical scenarios include: the decedent dies unexpectedly, the unborn child has not yet been born, and the other heirs demand that the estate be divided first; the fetus is born after the division of the estate, and its share needs to be confirmed; if the fetus fails to be delivered or is stillborn, how should its share be handled. When the Beijing area courts handle such cases, they first confirm the existence of the fetus and its blood relationship, and then reserve a share for it in accordance with the law.

II. Key points of contention

First, the applicable conditions and timing of the reserved share for the fetus. Second, the basis for calculating the reserved share—whether it is the same as the share for the child after birth. Third, who manages the reserved share and how to preserve its value. Fourth, the ownership and redistribution of the share when the fetus is stillborn. Fifth, how to reserve the share in the case of multiple births. Sixth, the issue of the validity of the will when it fails to reserve the necessary share.

III. Professional analysis by Henglue Law Firm

In a will inheritance dispute handled by Henglue Lawyers, the decedent left a self-written will making conditional arrangements for the property, requiring the inheritors to pay the agreed amount to relatives after disposing of the house. The parties disagreed on the way and deadline of performance. After accepting the case, the lawyer first consolidated the validity of the will, providing evidence that the form was complete and the intention was genuine. Then, focusing on the performance plan, he submitted income certificates and property valuation reports, advocating for a reasonable deadline and proposing "transfer of ownership first, payment later". Finally, the court recognized the validity of the will and adopted the phased performance arrangement. The handling logic of this case also has reference significance for the issue of reserved shares for fetuses: inheritance arrangements should respect the decedent's will, take into account the performance reality of the obligors, and balance the interests of all parties. Regarding the reserved shares for fetuses, Henglue Lawyers' practical experience is as follows: First, the legal basis is Article 1155 of the Civil Code of the People's Republic of China, which stipulates that the inheritance share of the fetus should be reserved when dividing the estate; Second, the reserved share is usually determined according to the share that the fetus would inherit as a first-order heir after birth, and the share should be increased accordingly for multiple fetuses; Third, the reserved share can be managed by the mother of the fetus, and the division plan should clearly specify the custody, income and subsequent transfer methods; Fourth, if the fetus is stillborn at birth, the reserved share shall be handled according to statutory inheritance and redistributed to the estate, at which time the shares of all parties need to be recalculated; Fifth, if the will involves such heirs, the necessary share should be reserved for them according to Article 1141 of the Civil Code, otherwise the relevant parts may be adjusted. This case was handled by Beijing Henglue Law Firm.Yuan HangThe attorney (practice certificate number: 11101202110286151, subject to the certificate issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action suggestions: First, promptly claim the reserved share for the fetus from other heirs or the court, and submit proof of pregnancy and expected delivery date; Second, specify the amount and custody method of the reserved share, and include it in the division agreement or judgment document; Third, pay attention to the outcome of the fetal delivery, as the handling methods for live and dead fetuses differ; Fourth, if a will is involved, verify whether the necessary share has been reserved; Fifth, if the amount of the reserved share is large, it can be negotiated to deposit it through notarization or manage it in a special account to ensure its safety. For more information, please refer to the platform's services.Inheritance of property and division of family assets、Divorce litigation and family disputes、Property sales and construction projects、Creditor's rights and debts, and enforcementAndSpecial servicesLegal basis: Articles 1127, 1141, and 1155 of the Civil Code of the People's Republic of China (all of which came into effect on January 1, 2021). The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglue Law Firm's Reminder

Firstly, the reserved share for the fetus is a legal obligation, and other heirs are not allowed to directly divide its share on the grounds that "the child has not been born yet". Secondly, the determination of the reserved share should refer to the first-order inheritance share after birth, and the share should be increased accordingly for multiple births. Thirdly, the share should be subject to custody and transfer arrangements to avoid being misappropriated or difficult to retrieve. Fourthly, if the child is born dead, the reserved share will be returned to the estate and redistributed according to the statutory inheritance. Fifthly, if a will is involved, attention should be paid to the necessary share rules, and the will arrangement may be partially adjusted accordingly.

VI. Frequently Asked Questions

Q1: Is it necessary to leave a share for the fetus when dividing the inheritance?

Yes. According to Article 115 of the Civil Code of the People's Republic of China, when dividing the inheritance, the inheritance share of the fetus shall be reserved. Other inheritors shall not exclude the fetus's share of inheritance on the grounds that the fetus has not yet been born. The right holder may actively claim it and specify it in the division agreement or the judgment document.

Q2: How is the share of the fetus calculated?

Generally, the inheritance share is determined based on their status as the first-order heirs after birth, that is, the share they should receive after the estate is distributed according to the rules among other first-order heirs; if they are multiple siblings, the reserved share should be increased accordingly. The specific amount needs to be calculated based on the scope of the estate and the number of heirs.

Q3: If the fetus is stillborn, who will get the share of the inheritance?

According to Article 115 of the Civil Code of the People's Republic of China, if the fetus is stillborn at the time of delivery, the reserved share shall be handled in accordance with the statutory inheritance, that is, it shall return to the estate and be distributed by other statutory heirs in accordance with the law. At this time, it is necessary to recalculate the shares of all parties and go through the corresponding procedures.

Q4: Who keeps the reserved share of the fetus?

Usually, the fetus's mother acts as the legal representative to manage the funds. When dividing the funds, the storage method, the ownership of the income, and the conditions for subsequent transfer should be clearly defined. If necessary, the funds can be deposited through notarization or managed in a special account. After the fetus is born and its identity is confirmed, the shares will belong to the fetus, and its guardian will manage them.

Q5: If the will does not leave a share for the fetus, is the will still valid?

The portion of the will that fails to leave the necessary share to the heirs who should be entitled to a reserved share may be adjusted accordingly. According to Article 1141 of the Civil Code of the People's Republic of China, the will shall reserve a necessary share for heirs who lack the ability to work and have no source of livelihood. Where the will involves a fetus, it shall also be handled in accordance with the rules on reserved shares.

The above Q&A is mainly based on the judicial practice in the Beijing area. There may be differences in the adjudication opinions in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Legal services for inheritance·Attorney Yuan Hang·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In case of disputes, please consult a practicing lawyer in time.