What is the Legitimate Portion in Inheritances in Spain
The legitimate portion is a figure in inheritance law that grants legitimate heirs the right to receive their share of the inheritance. Even if the deceased left a will excluding any of them.
JLA Notarios is a Notary Office in the Eixample of Barcelona, on the same Avenida Diagonal of Barcelona. We are a notary office specialised in Inheritance Law and inheritance taxation.
As experts in inheritances in Barcelona, we will explain the particularities of the concept of the legitimate portion in Common Law and how it is applied at the regional level, with special attention to the legitimate portions in Catalonia.
What is the compulsory portion in an inheritance?
The legitimate portion, in Spain, is a part of the inheritance that is protected by law, so that it must always be received by the legitimate heirs. According to Spanish legislation, the children and the spouse have the right to receive a fixed portion of the inheritance, known as the legitimate portion, which varies in the different regional laws. The legitimate portion in Spain is intended to guarantee the economic protection of the closest heirs.
The legitimate inheritance in Spain: Who inherits the legitimate portion according to the Civil Code?
And the thing is, in a will, the compulsory portion cannot be disposed of because it is reserved by law for certain heirs. We are talking about forced heirs or legitimaries.
Who are the forced heirs or legitimate heirs?
They are those relatives who have the right to receive a part of the deceased's estate in an inheritance. These include, in the following order:
- Children and descendants
- In the absence of children and descendants, the parents and ascendants
- In the absence of the above, the surviving spouse
With the hereditary legitimate portion, two thirds of the inheritance correspond to the forced heirs: the third of the legitimate portion and the third of the improvement. This is known as the global or long legitimate portion.
What portion of the compulsory share corresponds to each heir?
Now, some associated concepts are analysed to delve deeper into what the legitimate portion of an inheritance is.
Strict legitimate third in inheritances or short legitimate portion
In Common Law, one third of the inheritance (also known as the short forced share) must go to the children of the person leaving an inheritance, in equal parts among all the children. They are not designated in the will as forced heirs, but by law. A forced heir can only be excluded from the forced share in the specific cases established by law.
Improvement third in inheritance
Another third of the inheritance must go to the descendants under Common Law. However, with a will, it is possible to choose which of all the descendants receives this third of enhancement. In the event that the third of enhancement is not specified in the will, it becomes part of the overall legitimate portion. If there are children and a widower and there is no will, the widower's legitimate portion consists of the usufruct of this third of enhancement.
Free disposal in inheritances
This last third of the inheritance is not protected by the compulsory portion, so in a will the testator can leave this entire third to any person, even if there is a spouse or children.
The legitimate inheritance in children, the legitimate inheritance in siblings and the legitimate inheritance in spouse
According to the Civil Code of Spain, children and the spouse have the right to inherit the compulsory portion. If there is more than one child, the compulsory portion in an inheritance is divided equally among them. If the deceased left no children, the compulsory portion corresponds to the surviving spouse. In the event that there are neither children nor spouse, the compulsory inheritance may fall to the deceased's parents or, failing that, to the siblings.
The legitimate portion in regional law
In the territories with foral law in Spain, the application of the compulsory portion in an inheritance may vary depending on the particular legislation of each territory. In this regard, we find differences in foral communities such as Aragón, Catalonia, Galicia, Navarra, Balearic Islands and Basque Country. We will study the compulsory portion of inheritances in Catalonia, as we have our notary office in Barcelona.
Legitimate inheritance in Catalonia and frequently asked questions
In inheritances in Catalonia, the compulsory portion is established in the Civil Code of Catalonia. According to this legislation, the compulsory portion amounts to a quarter of the inheritance, which is freely disposable among the descendants. In this way, the testator must leave their descendants a quarter of the inheritance, although they can choose to leave it to just one or distribute this quarter of the inheritance as they wish among their descendants. They can even establish that this quarter of the inheritance be paid in cash, as the compulsory portion in Catalonia has what is known in law as a pars bonorum character.
In the absence of descendants, this quarter of the inheritance must go to the parents.
The surviving spouse is not a compulsory heir in Catalonia, but the law recognises some rights, such as the any de plor, or the right to reside for one year from the date of death in the habitual residence. The widower also has the rights of intestate succession and the widow's quarter.
Now that you know what the compulsory portion is, we want to delve deeper into the information related to the payments and taxes it entails.
If you are entitled to receive the compulsory portion in an inheritance, there is a period of ten years to claim it from the date of the deceased's death.
An out-of-court claim must be made by burofax to the heir. If there is no response, the procedure indicates the filing of a lawsuit to claim the legitimate share, proving the relationship or union between the deceased and the claimant.
In the event that the compulsory portion applies to you in an inheritance, the heirs must pay it. They are also responsible for the interest accrued from the date of the deceased's death.
The heir can pay the compulsory portion with cash from their own assets or from the inheritance received, or with the assets that form part of the estate.
The taxes that must be paid on the legitimate portion depend on the method of payment by the heir. In the event that they are taxable, they would be subject to the Inheritance Tax.
The payment of the compulsory portion is recorded in the notarial document known as the "delivery of the compulsory portion" or "deed of payment of the compulsory portion". This payment of the compulsory portion is most commonly made in the same inheritance deed.
Other frequently asked questions
In this case, it is the legatee who must bear the cost.
The cost of the legitimate document or delivery of the legitimate portion depends on the Notarial Tariff, the length of the deed, the relationship of the person receiving the payment to the deceased, and the value of the goods or money received.
It is a fixed amount established by law and all notaries are obliged to comply with the notarial tariff in the same way. If you want us to prepare a no-obligation quote for you, contact JLA Notarios and our team of Notaries in Barcelona will assist you.
Although the law establishes the payment of the legitimate portion as mandatory, certain exceptional circumstances are considered under which payment could be avoided. Among them are causes of unworthiness, such as, for example, in cases of denial of maintenance and/or mistreatment of the testator (or their spouse or partner and/or ascendants or descendants).
Legitimate process in Catalonia with JLA Notarios
In conclusion, when it comes to managing the legitimate portion in Catalonia, it is advisable to rely on professionals such as those at our notary office in Barcelona.
If you need to know more, you can consult our Succession Law Services, in which we specialise, or articles from our blog such as the following:
We hope this article has been helpful in understanding what the legitimate portion is in inheritances in Spain and in Catalonia. If you need to contact us, you can visit our offices on the Diagonal in Barcelona, you can make an appointment through the contact form on our website or send an email to bcn@jlanotarios.com.
