How To Calculate The Legitimate Inheritance?


It is increasingly common for people to take into account what will happen to our family and our assets when we are no longer here. Making a will is simple and it is also very helpful for family members, but when it comes to testament there are a series of basic concepts such as legitimate inheritance that we must take into account.

What is legitimate inheritance?

The inheritance of a person is divided into three parts. There is a third legitimate , a third improvement and a third freely available . The legitimate part is that which the testator cannot dispose of and which must necessarily go to the hands of his heirs (if he has them).

However, this is not always the case, since there are causes that enable the testator to disinherit all or some of his legitimate heirs. For example, if they have not taken care of him when he has needed it.

Who are the forced heirs?

Forced heirs are mainly children and descendants with respect to parents and ancestors . In the absence of them, the parents and ancestors will be with respect to their children and descendants . For the widowed spouse, the legitimate one is granted in the form of usufruct , that is, they will not have ownership of the assets but they will be able to possess them.

We see it better with an example. If you have children, your legitimate heirs will be them, or even your grandchildren if at the time of your death your children were no longer alive. If you don’t have children but you do have parents, they will inherit you.

Calculation of the legitimate

The Civil Code determines that the legitimate of the children and descendants is two-thirds of the inheritance . In the case of parents and ascendants, the legitimate is half of the inheritance or a third if the deceased had a widow or widower .

If the spouse concurs to the inheritance with children, the usufruct of the third improvement corresponds to him and the usufruct of half of the inheritance if he concurs only with ascendants. In the event that the widower or widow concurs to the inheritance without ascendants or descendants of his partner, he is entitled to the usufruct of two thirds of the inheritance.

In addition, it must be taken into account that in the Autonomous Communities with their own Civil Law there may be differences regarding the proportion of the legitimate. This occurs in Catalonia, Galicia, Navarra, the Basque Country, Aragon and the Balearic Islands.

How to claim the legitimate one?

The inheritance is claimed against the rest of the heirs. In these cases, what you do is follow the inheritance distribution procedure. It will be necessary to know first whether or not the deceased had a will.

If there is a will, the assets are distributed in accordance with the provisions of it. If there is no testament, a declaration of heirs is made first and then the assets and obligations are distributed according to the criteria established by the Civil Code.

Can I give up the legitimate one?

The renunciation of the inheritance can be made once the owner of the assets and obligations to inherit has died. It must be a resounding, express and clear resignation .

Opinions for and against the legitimate

Legitimate inheritance is a figure with a long history within Civil Law and today it is debated whether its maintenance makes sense or not. Especially in those cases in which the deceased’s assets go to the hands of someone with whom he hardly had a relationship.

Those who defend its maintenance emphasize that it is a way of protecting family assets and ensuring that certain assets are passed on from parents to children. As well as ensuring a certain economic level for those who have lost their family member.

Those who are against state that this legal provision restricts the freedom of people when it comes to doing what they want with their property .

Now that you know what legitimate inheritance is and the factors that influence it, our recommendation is that you consult with experts who can help you draft your will in a way that suits your wishes. Only in this way do you eliminate the risks associated with an invalid will and prevent your will from being annulled after your death.