Legitimacy in Inheritance

legitimacyIn light of the changes in Law in 2012 and that came into force last August¸ whereby it is your country of residence that governs the inheritance law applicable to your estate, unless special provision is made in your Will, here I explain the Legitimacy system to make you aware of how your estate is divided without this provision being made.

What is Legitimacy?

The Estate in an inheritance in Spain is divided in three parts: the legitimacy, a special bequest, and the part of free disposal. The legitimacy is the portion of the inheritance that the testator may NOT dispose of freely, even if he wants to, because the law reserves part of the inheritance for the “forced heirs”, unless the testator expressly disinherits them. The special bequest can be applied in favour of someone in particular or one or more of the children or descendants, and this will increase the part that is legitimately applicable to them. The part of free disposal can be left to whomever the testator wishes, even if they are not related.

What does the legitimacy entail?

To value the legitimacy you take the value of the assets and rights of the deceased at the time of death, deducting the debts, such as mortgage, loans etc. The amount of the legitimacy varies depending on the heirs that are party to the inheritance. This way we distinguish between the legitimacy of the spouse, that of the children and descendants and finally that of parents and ascendants.

The widow(er)’s Legitimacy

If when a person passes away they are not separated, this consists in: If there are children, The “usufruct” (life long use) of the special bequest. If there are no descendants but the ascendants are still alive: The “usufruct” of half of the inheritance. If this coincides with the deceased’s children, that are not in common but conceived during the marriage: The “usufruct” of half the inheritance. If there are no descendants or ascendants: The usufruct of two thirds of the inheritance.

However, in the case where the heirs may opt for giving the spouse their part of the usufruct: they may award the spouse a lifelong income, a determined amount or giving them ownership of certain assets. The legitimacy for children and descendants This makes up two thirds of the deceased’s estate, except where the testator makes an express use of the part of free disposal to one of them; in this case the legitimacy will make up only one third.

The legitimacy for parents and ascendants

This is made up of half of the estate that corresponds to children and descendants. If they coincide with the spouse, they inherit one third only. The legitimacy that is recognised in favour of the parents is divided equally between both parents, if either one has passed away, the surviving parents will inherit both parts.

If the testator has no parents but has grandparents, on the both sides of the family, the legitimacy will be divided between the grandparents equally. If the ascendants where of a different bloodline, the nearest next of kin will inherit everything (for example if both the grandfather and great grandfather coincide, the grandfather will inherit, independently on which of side of the family he is from).

Calculating the amount of the legitimacy can be complex, and requires professional assistance. Should need assistance on this matter or any other legal and tax matter, please do not hesitate to contact me on anagay@linkpointlegal.com or on 966260500.