It is the share of the inheritance upon which the testor may not decide freely. It is one third of the total inheritance and it is intended for the closest family members.
The inheritance is divided into three parts:
- Legitimate (Legítima)
- Improvement (Mejora)
- Free disposal (Libre disposición)
Each part represents a third of the inheritance. The legitimate part is the third reserved by law for the so-called forced heirs. According to Article 807 of the Spanish Civil Code, these heirs are:
Children and descendants with respect to their parents and ancestors.
In the absence of the above (children, grandchildren…), parents and ascendants with respect to their children and descendants shall be the so-called forced heirs.
The widowed spouse as set by the Spanish Civil Code.
The legitimate is unavoidable but is there a way of depriving a forced heir of their legitimate part by disinheriting them, as provided for in the Spanish Civil Code.
How much is the legitimate? What percentage?
As already stated in the definition of legitimate, an inheritance is divided into three parts- legitimate, improvement and free disposal.
In ordinary Spanish law, each part represents a third of the inheritance and two of them are allocated to the so-called forced heirs, the legitimate and the improvement part-which is also allocated to one or more of the forced heirs.
For the calculation of the percentage of the estate involved in the legitimate, several operations need to be made:
The calculation of estate assets for the legitimate needs to take into account any gifts granted during the deceased´s life.
The allocation of the legitimate, or to which of the thirds shall the gifts by the deceased relate and the portion of the gifts.
Once these calculations have been made, the percentage corresponding to the legitimate shall be determined.
The legitimate also depends on the kinship that the heirs have with the deceased. Thus, the Civil Code establishes that the legitimate represent
In the case of descendants: 2/3 of the estate (strict legitimate + improvement)
In the case of ascendants: 1/2 or 1/3 if the beneficiary is the widowed spouse.
The legitimate in Catalonia
In Catalonia, the legitimate is the fourth part of the value obtained from the calculation and allocation, as opposed to the third representing the legitimate in territories under ordinary Spanish law.
The strict legitimate
All forced heirs are entitled to the third of legitimate, except if they were disinherited, and the third of improvement is also compulsory for one or several of the forced heirs.
Now, if the testator grants Will and Testament, he/she may favour any forced heirs by using the third of improvement.
That is, the legitimate shall be divided into ALL forced heirs. The strict legitimate is only one third of the estate, but the legitimate as a whole includes the strict legitimate and the third of improvement.
If the deceased did not grant testament, the whole estate shall be divided equally into the heirs, in accordance with the allocation order set in the Civil Code.
At Carbray we have expert lawyers ready to help you, if you need advice on inheritance in Spain, gift, etc. do not hesitate to get in touch with us.