- What is legitimate?
- How an inheritance is divided
- Who has the right to collect the legitimate inheritance
- Legitimate of the descendants
- Legitimate of the ascendants
- How is the legitimate portion calculated?
- Examples: practical cases to understand it better
What is legitimate?
The legitimate of an inheritance is the proportional part that corresponds to the direct heirs, for example, the spouse and children of the deceased.
The testator cannot organize the distribution of these assets, since it is the law that establishes how they should be divided among the heirs.
Those who receive the legitimate inheritance are known as legitimate heirs or forced heirs. They cannot be deprived of these assets.
How an inheritance is divided
To understand the distribution of the legitimate share, it is necessary to know how an inheritance is divided.
The inheritance consists of the following parts:
- Third of free disposition.
- Third of improvement.
- Legitimate.
The first two parts can be divided as the testator sees fit.as long as it is indicated in the will.
The legitimate share cannot be changed, since the law is responsible for establishing the distribution of said assets.
Who has the right to collect the legitimate inheritance
Once you know that the legitimate portion is mandatory and corresponds to one third, it is time to know who has the right to collect it.
These are the people who have the right to receive the legitimate inheritance:
- Children and descendantsthe deceased being their parents and ancestors.
- If the above are missing, the legitimate inheritance will go to the parents or ascendants of the deceased.
- The widow or widower is always a forced heir, even under a usufruct regime.
The legitimate heirs are always the children, If they are not alive, they would be grandchildren, and then great-grandchildren.
If the testator has no children, the legitimate heirs will be the parents, and then the grandparents, great-grandparents, etc.
Legitimate of the descendants
It corresponds to two thirds of the inheritance: the third of the legitimate and the third of improvement.
In these cases, the testator has the right to improve the inheritance received by his descendants. There are three possible situations here:
- If the testator does not have the third of improvement: The heirs will receive one third of the improvement and one third of the legitimate portion.
- The testator has the third of improvement and leaves it to one of the descendants: the rest of the children will receive only the legitimate share.
- The testator has a part of the third of improvement and leaves it to one of the descendants: the rest will receive the other part of the third of improvement distributed equally.
Legitimate of the ascendants
If there are no descendants, the legitimate share must be divided among the ascendants.
In these cases, the legitimate share will be one third of the inheritance. The following possibilities exist:
- Legitimate of the parents: is divided equally between them.
- Legitimate from ascendants of equal degree: It is divided in half between both lines; this is what happens, for example, with grandparents.
- Legitimate from ascendants of different degree: The legitimate share corresponds to those closest in degree, for example, grandparents before great-grandparents.
How is the legitimate portion calculated?
Knowing how the legitimate portion is calculated is a key aspect before receiving an inheritance. Otherwise, doubts may arise during the process.
To find the value of the inheritance, you must add the assets and subtract the debts.For example, a bank account with 40,000 euros, from which 15,000 euros of a loan would have to be subtracted.
To this must be added all the donations that the deceased made during his lifetime. Then, the total sum is divided among the legitimate heirs.
Each of the forced heirs will receive one third of the legitimate share. This can only be renounced once the testator has died.
Examples: practical cases to understand it better
Understanding how the legitimate portion of an inheritance works is often complicated, which is why it is always advisable to illustrate with an example.
This is a case of legitimation of an inheritance:
Before dying, a man draws up his will, distributing his assets as he sees fit and without taking into account the third of the legitimate inheritance.
Once the deceased dies and the assets begin to be distributed among the heirs, the direct descendants become aware of the situation and try to resolve it by speaking with the other heirs.
However, the latter do not give in and ask that what appears in the will be respected, so the direct heirs are suing the courts.
The case is being studied by a judge, who after reviewing the evidence and legal documents estimates that part of the third of the inheritance has gone to other heirs who are not direct.
The court issues the ruling: the assets must be distributed as the Civil Code considers in these cases, giving one third to the direct heirs, who in this case are the children of the deceased.
The process has lasted several years, but finally the direct descendants of the deceased have in their possession the assets that belong to them. During all this time, the assets reflected in the will could not be used by the heirs.