Legitimate

In succession law, Legitimate is called that portion of assets that the testator (person who makes the will) cannot dispose of for having reserved it, the Law to certain heirs, called for that reason 'forced heirs' or 'legitimate'. That is to say, every legitimary is an heir, but not every heir is a legitimary (there is a gender-species relationship).

This obligation is complemented by the rule that a person cannot donate while alive what he could not bequeath after his death, so the legitimate also indirectly affects transactions inter vivos.

In general, the preterition (forgetting or not mentioning) of the forced heirs does not harm the legitimate one.

Opinions

There are different opinions about the existence of the legitimate, which can be summarized in two depending on whether they are in favor or against:

• The views in favour argue that the legitimate serves as the protection of the family, and of the right arising from consanguinity. It is also a protection of both the spouse and, above all, the descendants.
• The opinions against them argue that the autonomy of the will should prevail in the testamentary statements, since a person should be able to decide the fate of all his or her property, as they are his or her property.

Regulations

Spain

In Spanish law, the legitimate is made up of the legal and the improvement.

The legitimate will vary depending on the family situation of the testator when he dies:

1. In the event that the deceased has descendants, they constitute the legitimate of the children and descendants two thirds of the heir to the testator. However, if the testator so indicates, he may have half of the legitimate one (one third of the total inheritance) to apply it as an improvement exclusively to the children or descendants he designates. If the testator does not have anything on this third, its distribution will be made in the same proportion as the first third. The last third remaining of the inheritance will be free disposal (although the specific percentages are set by the laws of each country).
2. In the event that the deceased has no descendants, but his direct ascendants were alive at the time of his death, the lawful one of the parents or ascendants constitutes half of the hereditary, except the case in which they concurred with the widowed spouse of the causative descendant, in which case it will be one third of the inheritance.
3. Finally, in the event that he died without direct family members, the legitimate would not exist and would have free disposal of all of his assets.

In Spanish civil law, the legitimate is defined in art. 806 of the Civil Code, which says: "Legitimate is the portion of assets that the testator cannot dispose of because the law has reserved it for certain heirs, called for this reason forced heirs". The legitimate of an inheritance is untouchable, that is, the testator may not impose on the legitimate any lien, condition, or substitution of any kind.

Professors Díez Picazo and Gullón, as well as the late Professor Doctor Lacruz, highlight the lack of technical rigor of this definition.

According to the opinions of these professors, and stated very briefly, we must say: a) the testator is not limited to dispose of his assets; b) the disposition of his assets can be made as a legacy, by donation, as an heir; c) the beneficiary is not necessarily an heir

Art. 806 of the Spanish Civil Code would not pretend to give a definition of legitimate, but to approximate with certain brushstrokes certain characteristics of this institution. So:

a) wishes to express that the successor in title cannot do what he wishes with all his assets, because there are assets that by virtue of the Law must give them a purpose: the passage to the legitimaries.

b) the legitimate weighs on assets, and not on the inheritance.

c) heir and legitimary, as previously stated, are not synonymous terms: not every heir is legitimary