Delivery of legitimate

In this aspect, the law determines a principle of intangibility of the legitimate, so that the deceased cannot impose on the attributions as legitimate or attributable to these, conditions, terms or modes, and neither can he impose them with usufructs or other charges, nor subject them to trust, to such an extent that, if the deceased imposed them, they would be considered as not having been placed.

However, if the disposition of the reserved portion contains any of these limitations and its value is higher than what corresponds to the reserved portion, the legatee can choose either to accept it with this burden or to claim only what corresponds to him/her as reserved portion. In such a case, if the legatee accepts the inheritance or the legacy subject to some limitation, it is understood that he/she renounces to this faculty of choice that has just been explained.

If the persons to whom the legitimate share is due have also been designated as heirs or legatees of the deceased, in an amount that already reaches the amount of the legitimate share, there will be no problem with it.

In the same way, if during the life of the deceased the latter has made donations or other particular attributions in favor of the heirs with express agreement of imputation or in payment or on account of the reserved portion, these will also be computed for the effects of the said reserved portion, so that, if they have already reached it, the heir will not have anything to claim for this concept from the heir. On the contrary, if these donations or particular attributions imputable to the reserved portion do not reach the same, the legitimate will have the right to claim the supplement of the reserved portion until reaching the same.

On the contrary, in the event that the legitimate heirs have not also been designated as heirs (nor have they received a donation or particular attribution attributable to the same), once these heirs have accepted the inheritance and taken possession of the same, they must proceed to pay the legitimate share to the legitimate heirs, through the execution of the corresponding deed of delivery of legitimate share, which is developed in these questions and answers.

The heir or the persons empowered to make the partition, distribution of the inheritance or payment of the legitimate shares, may opt for their payment, either in money (even in the event that there is none in the inheritance) or by means of assets of the estate.

<ejemplo>Así pues, por ejemplo, si en la herencia sólo hay un bien inmueble y no hay dinero, para evitar que se asigne el 25% del mismo al legitimario, y tener que compartir así la propiedad de dicha vivienda entre el heredero y el legitimario, éste puede optar por pagarle el 25% del valor del inmueble al legitimario con su propio dinero (pues recordemos que en la herencia no había dinero) y así atribuirse el 100% de la propiedad de la finca a su favor.<ejemplo>

In the event that payment by means of inheritance assets is chosen, if the beneficiary is not satisfied with the assets that are intended to be awarded, he/she may appeal the decision judicially so that they are allocated in a more appropriate manner.

In any case, if payment by means of inheritance assets is chosen, it is also necessary to know that the valuation of these assets will be made at the moment in which the heir or the entitled person chooses them and awards them to the beneficiary.

In order to know whether or not the right accrues interest, it is necessary to take into account the dispositions of the deceased. Thus, the deceased may stipulate that it shall not accrue interest or, on the contrary, fix its amount.

If you are silent on the matter, the law determines that the legitimate share accrues the legal interest from the death of the deceased, so that, in the calculation of the payment of the legitimate share, this must be taken into account to determine the total amount to be paid to the legitimate shareholder.

In order to guarantee that the heir receives what is due to him/her based on this right, the inheritance regulations determine that the heir is personally liable for the payment of the legitimate share, so that, if he/she does not pay it, the legitimate shareholder can take action against his/her estate to obtain the corresponding satisfaction.

Likewise, the law empowers the legitimate beneficiary, in the event of filing a claim for payment of the legitimate share, to make a preventive annotation of the same in the Property Registry.

Indeed, as has been indicated, the law determines that certain relatives (as we have seen, specifically, children and descendants and, in their absence, the parents of the deceased) have the right to the reserved portion, which, in an ordinary situation, cannot be denied, so that, even if the deceased does not want it, this 25% of his inheritance will be assigned to his legitimated beneficiaries. 

However, the law establishes a series of exceptional cases in which it is possible to deprive the legitimate beneficiary of his right to the legitimate share, which are detailed below:

• First, the causes of unworthiness, among which we find:
• ~The person who has been convicted by a final judgment handed down in a criminal trial for having maliciously killed or attempted to kill the deceased, his spouse, the person with whom he lived in stable partnership or a descendant or ascendant of the deceased.
• ~The person who has been convicted by a final judgment handed down in a criminal trial for having fraudulently committed crimes of serious injury, against liberty, torture, against moral integrity or against sexual freedom and indemnity, if the aggravated person is the causer, his spouse, the person with whom he lived in stable partnership or a descendant or ascendant of the causer.
• ~He who has been convicted by a final judgment handed down in a criminal trial for having slandered the injurer, if he has accused him of a crime for which the law establishes a penalty of imprisonment of not less than three years.
• ~He who has been convicted by a final judgment in a criminal trial for having given false testimony against the tortfeasor, if he has been charged with a crime for which the law establishes a prison sentence of not less than three years.
• ~He who has been convicted by a final judgment handed down in a criminal trial for having committed a crime against family rights and duties, in the estate of the aggravated person or of a legal representative of the aggravated person.
• ~The parents who have been suspended or deprived of parental authority over the child causing the succession, for a cause attributable to them.
• ~He who has maliciously induced the testator to grant, revoke or modify a will, a succession agreement or any other disposition due to the death of the testator or has prevented him from doing so, as well as he who, knowing these facts, has taken advantage of them.
• ~He who has destroyed, concealed or altered the will or other disposition on account of death of the testator.
• The denial of maintenance to the testator or to his spouse or cohabitant in stable partnership, or to the ascendants or descendants of the testator, in cases where there is a legal obligation to provide it.
• Serious mistreatment of the testator, his spouse or stable partner, or the ascendants or descendants of the testator.
• The suspension or deprivation of the power of the legitimated parent over the deceased child or of the power of the legitimated child over a grandchild of the deceased, in both cases for a cause attributable to the person suspended or deprived of the power.
• The manifest and continuous absence of a family relationship between the deceased and the beneficiary, if it is due to a cause exclusively attributable to the beneficiary.

Thus, if any of these exceptional causes occur, the law allows disinheriting the beneficiary and depriving him/her of this right, as long as it is clearly expressed in a will, codicil or inheritance pact, with details of the specific cause that motivates it.

In any case, it is also necessary to know that, if the deceased and the beneficiary reconcile or forgive each other, and this can be accredited by means of undoubted acts or public deed, this circumstance leaves the disinheritance without effect, with the particularity that, in addition, this reconciliation or forgiveness is irrevocable.

Inofficiousness is the circumstance that can occur when there are not enough assets left in an inheritance to pay the legitimate shares, so that the heir, in order to retain his own legitimate shares without detriment, is forced to reduce or eliminate possible bequests in concept of legitimate shares to ensure the payment of these to all the legitimate shareholders, thus avoiding a patrimonial detriment.

On this matter, it is necessary to start from the idea that, in principle, unilateral acts in which the right to the reserved portion is renounced or prejudiced before the death of the deceased are null and void, so that the "future or potential" legitimate beneficiary cannot, for example, sell his or her legitimate rights to a third party before the deceased has died.

However, the Catalan Civil Code establishes a series of exceptions, which will be developed below. Therefore, they will be valid:

• The agreement between spouses or cohabitants in stable partnership by virtue of which they renounce to the legitimate share that could correspond to them in the succession of common children.
• The agreement between children and parents by which the latter renounce the legitimate share that could correspond to them in the inheritance of the pre-deceased child.
• The agreement between ascendants and descendants stipulated in a succession agreement or in a donation by which the descendant who receives from his ascendant goods or money in payment of future legitimate waives the possible supplement.
  

In accordance with the Catalan inheritance law, the right to claim the legitimate share prescribes 10 years after the death of the deceased, so that before this period, the legitimate shareholder, if he/she intends to claim it, must do so, otherwise he/she will lose this possibility.

In the deed of delivery of the reserved portion, if there has not been a prior acceptance by the beneficiary, the latter will accept the reserved portion and then receive the delivery of the assets or the money to which he is entitled, thus being deemed to have paid the rights of the beneficiary.

In principle, unless otherwise agreed by the parties, the expenses derived from the formalization of the delivery of the reserved portion will correspond to the beneficiary, so that, for example, the cost of the deed of delivery of the reserved portion will have to be assumed by the beneficiary who receives the same.

The acceptance and collection of the reserved portion is subject to Inheritance Tax, as established by the law regulating said tax, so that the legitimate, when accepting and collecting the reserved portion, must face the fiscal cost derived therefrom.

In accordance with Article 806 of the Civil Code, the reserved portion is the portion of property that the testator cannot dispose of because the law has reserved it for certain heirs, called forced heirs.

Thus, by virtue of article 807 of the Civil Code, they are forced heirs:

1. Children and descendants with respect to their parents and ascendants.
2. In the absence of the above, parents and ascendants with respect to their children and descendants.
3. The widow or widower in the manner and to the extent established by the Civil Code, as detailed below.

In view of the above, the following should be taken into account:

a) When the testator has children or descendants:

In this case, two thirds of the father's and mother's inheritance will constitute the legitimate portion of the children and descendants, with the remaining third being freely disposable. This means that, for example, any testator who has children or grandchildren, when making a will, will have the right to inherit:

• He may freely dispose of only one third of his inheritance.
• The remaining two thirds of the legitimate share must be attributed to his children or other descendants, taking into account, however, that one of these thirds must be equally distributed among all of them, while the remaining third may be assigned as an improvement (whose specific regulation can be found in articles 823 to 833 of the Civil Code) to any of them as they deem more convenient.

b) When the testator has no children or descendants, but has ascendants:

In this case, and in accordance with article 809 of the Civil Code, half of the inheritance of their children or descendants will constitute the legitimate portion of their parents and ascendants.

However, if these ascendants concur to the inheritance with the widowed spouse of the deceased, their legitimate share will be one third of the inheritance.

c) When the testator is married:

In this case, Articles 834 to 840 of the Civil Code, which regulate the rights of the widowed spouse, will be applicable. These articles establish that:

• When the spouse who at the death of the deceased is not legally separated from the deceased or, in fact, if he/she participates in the inheritance with children or descendants, he/she will have the right to the usufruct of the third destined to improvement.
• On the other hand, if there are no descendants, but there are ascendants, the surviving spouse will have the right to the usufruct of half of the inheritance.
• Finally, if there are neither descendants nor ascendants, the surviving spouse is entitled to the usufruct of two thirds of the inheritance.