When regarding inheritance, sharing of assets, testaments and, finally, all the rights and duties related to the said successions, many doubts arise. Frequently, ignorance of the legal rules that regulate these matters generates real “wars” between family members, and the legal “dirty words” that arise in these matters, with which the majority of the population is not familiar, can make the practical resolution of these issues even more difficult.
In this article we will provide some clarifications in relation to the ” legitimate right” and the “lawful inheritors”, legal figures that are central to these issues.
First of all, the lawful inheritors, listed in Article 2157 of the Civil Code, are those people who cannot, except in special cases of, for instance, disinheritance or renunciation, be removed from the inheritance. They are, namely The spouse (wife/ husband), the descendants (children) and the ascendants (parents, grandparents).
This group of inheritors is entitled to a share of the inheritance, which is called the “reserved share”.
This is provided for by Article 2156 of the Civil Code and is a portion of the inheritance which a person cannot freely dispose of, which means that he cannot, by testament or other conventional means, assign it to other people or distribute it in proportions other than those provided for by law.
This part of the inheritance varies according to the number of inheritors and the degree of relationship with the testator/deceased. The rules defining the legitimate share belonging to the group of legitimate inheritors are set out in Articles 2158 to 2161 of the Civil Code.
For instance, a person, who is married and has two children, may only freely dispose of 1/3 (one third) of the inheritance by testament, since 2/3 (two thirds) of all assets comprising the inheritance must be allocated to the children and spouse. In another situation in which a person has passed away without leaving any children, but with a surviving spouse, the widower’s reserved share will correspond to half of the inheritance.
The calculation of the reserved share, in relation to the inheritance, follows the rules set out in Article 2162 of the same code. In simplified terms, it proceeds as follows:
First, it is necessary to calculate the mass of the inheritance and, to do so, it is necessary to define the value of the (1) assets left, from which we subtract the value of the (2) debts and add the value of the (3) donations. The value of the assets left behind, or “assets existing in the patrimony of the deceased at the date of his death”, is calculated by adding the value of all the deceased’s own assets; the debts, are naturally those for which the deceased was responsible and which still exist at the time of his death; and the donations are those made by the deceased while still alive.
Once the value of the inheritance mass has been defined, the reserved share is calculated according to the number of inheritors and the degree of relationship, in the above-mentioned proportions. Finally, if there are no ascendants, descendants or spouses, the testator at the outset may freely dispose of the inheritance. If, on the other hand, there is no testament at the time of death, will be called to succession the lawful beneficiaries, as provided for in Article 2132 and following.
Carla Chibeni