Reserved portion or “Legitima”
The reserved portion or “Legitima” restricts the freedom to dispose of one’s estate in the form of a will and it’s determined either by the Civil Code or by the laws of the autonomous community some cases. In this Article we will speak about the Civil Code Regulation.
According to it the “Legitima” is a portion of the property reserved by the law for certain heirs, called forced heirs.
The spouse of the deceased, the descendants and (if there is no spouse or descendants) the parents or other ascendants of the deceased are the forced heirs.
The reserved portion to which the children and descendants and, if there is no spouse or descendants, the ascendants, and also the surviving spouse (always) of the deceased (Art. 807 Civil Code) are entitled to, corresponds to:
- 2/3 for the descendants (1/3 of the strict reserved portion, and 1/3 as an additional amount, for free distribution among the descendants (Art. 808 Civil Code).
- 1/2 for the parents and ascendants (only if there are no descendants) or 1/3 when there is also a surviving spouse (Art. 809 Civil Code).
- Usufruct of 1/3 of the succession for the surviving spouse when there are also children (Art. 834 Civil Code),1/2 when there are ascendants (837 Civil Code), and 2/3 if there are no ascendants or descendants.
The heir to the reserved portion can instigate an action for a supplement to the reserved portion, within a time limit of 15 years if it is a personal action and 30 years for a real action before a court. The limitation period begins from the moment the heir could have asserted his/her right, i.e. the time of the testator’s death.
Renunciation is only permitted after the death. It must be declared in a notarised deed or be accepted by a court and also has effects for the descendants of the person waiving all rights to the succession.
David Lorenzo-Spanish Lawyer UK
Foreign Law | Birchall Blackburn
www.birchallblackburn.co.uk www.spanishpropertiesintheuk.co.uk www.spanishlawintheuk.co.uk