What is legitimate inheritance and when does it apply?

When we talk about inheritance, it can be somewhat complicated, especially if the amount to be transferred after death is very high.

Therefore, it is important to know what legitimate inheritance is and when it applies.

What is legitimate inheritance?

The legitimate inheritance is the part of the inheritance that the testator cannot freely dispose of because it is reserved for the forced heirs.

The legitimate heirs have the right to receive the inheritance in the following order and form:

• Descendants. They are the first in the right to distribute the legitimate inheritance, which consists of two-thirds of the total. The distribution may be subject to the specifications of the will or divided equally if no will exists.
• Ascendants. If there are no descendants, they have the right to that part of the inheritance. They will receive half of the total value of the legitimate inheritance, divided equally between the parents, or one-third of the total if only one parent exists.
• Spouse. The spouse has the right to the usufruct of a part of the property, being half if there are ascendants and one-third if there are descendants.

Therefore, the law reserves a part of the inheritance for the forced heirs, which the testator cannot dispose of.

When to apply legitimate inheritance

In any case, even when there is a will from the deceased, the part of the inheritance that corresponds to the legitimate heirs must be reserved.

If the testator has left a forced heir with an inheritance amount less than their legitimate share, the legitimate heir can request the supplement through a judicial procedure.

The provisions included in the will that entail a reduction of the legitimate share of the forced heirs will be reduced at their request.

Although this is the general rule based on the affection that usually exists in family relationships, there are some causes for which the Law allows the testator to deprive the legitimate heirs of their share. These causes are:

• Having been convicted in court for having attempted against the life of the testator, their spouse, descendants or ascendants.
• Having accused the testator of a crime and that the accusation being a slander.
• Having forced the testator, through threat, fraud or violence, to make a will or change it.
• Having prevented the testator, through threat, fraud or violence, from making or revoking the will, or replacing, hiding or altering another subsequent will.
• Having denied sustenance, without reason, to the child, spouse or parent.
• Having physically abused or gravely insultedthe testator.
• Having seriously or repeatedly breached marital duties.

For a legitimate heir to lose their right to the Legitimate Inheritance for any of these reasons, they must be expressly disinherited in the will, where the reasons must be listed and argued. However, the disinherited heir can challenge the disinheritance and appeal to the Judge to assess the reality of the alleged causes.

How to calculate the legitimate inheritance

To calculate the legitimate inheritance, the deceased’s assets must be divided into three parts:

• Third of legitimate. This part belongs to the forced heirs and must be distributed equally among all of them. Except for the exceptions mentioned above, compliance is mandatory.
• Third of improvement. This portion can be used to benefit a descendant, provided it is expressly stated in the will. If not, it will be used to increase the legitimate inheritance in another third.
• Third of free disposal. Only this part is truly at the discretion of the testator, so it can be allocated as preferred.

The amount allocated to legitimate inheritance may vary depending on the Autonomous Community of residence, the number, and type of heirs.

There are, therefore, three types of legitimate inheritance:

• Children and descendants. According to the Civil Code, they are entitled to two-thirds of the inheritance, unless the third of improvement is specifically designated to benefit one of them.
• Parents and ascendants. They are entitled to half of the estate, unless there is also a surviving spouse or descendants. In the first case, they would receive one-third, while in the second case, they would have no rights.
• Surviving spouse. Three situations can occur:
  • Usufruct of one-third if there are children or descendants.
  • Half if there are parents or ascendants.
  • Two-thirds if there are neither descendants nor ascendants.

All these amounts are established in the Civil Code, although there may be variations in cases where regional laws or the legislations of some Autonomous Communities apply. As we have seen, legitimate inheritance is what the testator is obligated to leave to the forced heirs: descendants, ascendants and surviving spouse. It always applies, except for exceptions contemplated in the law.

Further information

This article is part of our service Inheritance in Spain. Visit this section where you will find all the useful information on this topic, including a complete guide on Inheritance in Spain with a non-resident, expat or foreigner.

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