Are you worried that a loved one will exclude you from his or her will in Catalonia? Do you not know if, as a child or parent of the deceased, you are entitled to a share of the inheritance no matter what? In Catalan civil law there is the figure of the 'legítima' (the legitimate share), a legal mechanism that guarantees certain heirs a minimum portion of the inheritance regardless of the will of the testator. Below, we explain what the legítima is in Catalonia, who can claim it, how much it amounts to and how to demand its payment. We include frequently asked questions, practical examples and tips, so that you can relate to and easily understand this important concept.
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Written by María Serra
Lawyer and mediator
What is the legitimate share (la legítima) in Catalonia and who can claim it?
The legítima is the part of the inheritance that the law obligatorily reserves for certain relatives of the deceased (called legitimarios), even if the deceased has not mentioned them in his or her will. In Catalonia, the legítima is considered a credit right: this means that the beneficiaries are entitled to obtain an economic value from the inheritance, but not to specific assets in property. In other words, the legitimario can claim a sum of money equivalent to his or her legitimate portion, regardless of how the testator has distributed his or her assets in the will.
Note: The legítima acts as a legal limit on the freedom to make a will. Even if the deceased wanted to leave all his assets to another person, the Catalan law obliges them to respect that quarter reserved for enforced heirs. This right arises at the moment of the death of the deceased (not before).
Who has the right to the legitimate share (la legítima) in Catalonia?
The relatives with the right to a legitimate share are called legitimarios. In Catalonia the only people who are legitimarios are:
- The children of the deceased (and, by extension, their descendants in case a child has predeceased the person whose estate is being distributed). All the children are entitled to an equal share of the estate. If a child of the person in question passed away before them or was justly disinherited, his or her children (grandchildren of the deceased) take his or her place and can claim the legitimate portion that would have corresponded to their parent. For example, if the deceased had two children, but one died before, the children of the deceased (grandchildren) can claim the legitimate portion that would have corresponded to their parent.
- The parents (father and mother), only in the absence of descendants. If the deceased leaves behind no children or other descendants, their parents would have the right to the legitimate share, dividing it in half between them. Please note: if only one of the parents is living, that single parent receives the entire share. On the other hand, grandparents or other ascendants do not inherit the reserved portion if the parents are missing; the reserved portion is limited to the parents in the direct ascending line.
In summary, the law establishes that the main legitimate beneficiaries are the children, and if a child does not survive, his descendants. In the absence of the foregoing, the parents of the deceased become legitimate beneficiaries, dividing la legítima among them. No other relatives (siblings, aunts, uncles, nieces, nephews, etc.) have the right to a legitimate share in Catalonia. This means, for example, that the siblings of the deceased are not enforced heirs: if there are no children or parents, the testator could leave them out of the will without them having a legitimate right (they would inherit only if there is no will according to the rules of intestate succession, but not by means of an enforced right).
What about the widowed spouse? In the Catalan Civil Code, the widowed spouse or partner is not a legitimate beneficiary (he or she does not have a legitimate share). However, he or she has other specific inheritance rights, such as the so-called fourth widower (cuarta vidual) or certain usufructs, which protect him/her in the absence of provisions in his/her favor. These rights of the widow/widower are independent of the reserved portion and are not discussed in detail in this guide.
How much is the legitimate share in Catalonia?
In Catalonia, the legítima is equivalent to one fourth (25%) of the net estate of the deceased. This means that it is calculated on the total value of the estate at the time of death, subtracting outstanding debts, final illness and funeral expenses, and adding the value of certain assets that the deceased may have given away in the 10 years prior to death (to avoid reducing the legitimate share as a result of donations during life).
This resulting one-fourth is the global legitimate share, which must be distributed equally among all the legitimated beneficiaries (legítimarios).
Let's see a practical example of calculation of the reserved portion
- Let's imagine that the deceased person's net estate (minus debts and expenses) is €200,000. The total legitimate share will be 25% of €200.000, i.e. €50.000.
- If the deceased had two children as the only legitimate beneficiaries, this €50,000 would be divided in equal parts: €25,000 for each child as a legitimate right. The remaining €150,000 (75% of the estate) constitutes the free disposition portion (porción de libre disposición), which the testator was free to assign during his lifetime or in his will.
- Realistic case: Suppose that in his will the father named the eldest son as universal heir and did not mention the youngest son. Even so, the younger son will be able to claim his €25,000 of legitimate rights from the heir sibling. The older brother, although he is heir to practically the entire inheritance according to the will, is obliged by law to give that portion to the other entitled son. In percentage terms, with two legitimate beneficiaries, the universal heir can only effectively dispose of 75% of the inheritance, since the other 25% corresponds to the legitimate right of both children (in this case, 12.5% for each).
If there are more than two children, the principle is the same; all share equally in this 25%. For example, with four legitimate children, the reserved portion (25% of the inheritance value) would be divided into four parts of 6.25% each. The testator could freely dispose of the remaining 75% among whomever he wished, but this 25% remains reserved for the children.
Donations during life
If the testator made important donations in the 10 years before his death (for example, giving money for the purchase of a house to a child), these donations are attributed to the estate. In other words, they are added to the estate (or deducted from the beneficiary's portion, as the case may be) when calculating the legitimate share. This prevents the testator from emptying his estate during his lifetime to the detriment of his enforced heirs. Example: If in the above case one of the children already received €10,000 during his lifetime as an advance payment, that €10,000 would be considered on account of his legitimate share, thus reducing the amount that he could claim later.
The legitimate share in Catalonia with will: what happens if I am excluded from the will?
One of the biggest concerns of legitimate beneficiaries is what happens if the testator does not leave them anything in the will. In Catalonia, even if there is a will that omits you, you still have the right to claim your legitimate portion. The law is very clear on this: the legítima prevails over the will of the testator as regards to that fourth part.
How much is left to a child if it's not mentioned in the will?
In this case, the amount corresponding to the child will be exactly the portion of the reserved share that we have just set out (the portion of the 25% share divided among the children). That is to say, a child not named in the will can claim their portion of the joint inheritance with their siblings. Let's look at a simple example:
- Example: Martha dies leaving a will in which she bequeaths all her assets to her husband. She has two children, whom she did not mention in the will (she did not formally disinherit them, she simply did not include them). In this case, her two children, as joint heirs, can jointly claim 25% of the value of Martha's inheritance. If the net inheritance amounts to €100,000, the global legitimate share is €25,000. Each child would be entitled to €12,500. The husband, named as heir to everything in the will, will have to cede or pay this amount to the children in order to respect their legitimate share, keeping, in the end, 75% of the inheritance (€75,000).
In legal terms, the appointment of a universal heir does not eliminate the legitimate share in Catalonia. Even if there is only one heir designated for everything, if the deceased has children, they retain their right to 25% of the inheritance divided among them. The universal heir (for example, the spouse or a favorite child) will then have the obligation to pay the legitimate portions to the other legitimate beneficiaries. This payment can be made monetarily or by attributing specific assets for the corresponding value, if the legitimate beneficiaries agree. In case of disagreement as to which assets or how much they are worth, a judicial or expert decision will be necessary in order to determine it.
What if the testator really wanted to disinherit his child?
Catalan law provides some exceptional causes for disinheritance (serious mistreatment, absence of relationship because of causes attributable to the child, etc.). If they are fulfilled and are expressed in the will, the child could lose his legitimate portion. But these causes must be proven and be just and legal. Disinheritance by simple capricious will is not valid. If there is no valid cause for disinheritance, the omitted child maintains their right to the reserved portion even if the will does not mention it. In practice, many testators in Catalonia choose to leave the "strict" legitimate share and nothing else to certain heirs with whom they do not wish to share the rest of their assets. For example, a father could indicate in his will: "To my son, X, I leave only what corresponds to him by means of legitimate share". In this way he complies with the law by giving him his minimum share, and distributes the rest of the inheritance according to his preference.
How to claim the legitimate share in Catalonia?
Having the right to la legítima does not mean that it is received automatically; the legítimarios (legitimate beneficiaries) normally have to claim it actively, especially if it has not been contemplated in the will. Below, we explain the steps and tips on how to claim your legitimate portion effectively:
Throughout this process, it is highly recommendable to count on legal advice specialising in inheritances. A lawyer will be able to help you to correctly calculate your legitimate share (including the computation of donations, fruits of the assets, etc.), manage the negotiations with the opposing party and, if necessary, file the corresponding lawsuit.
Deadline for claiming the legitimate share in Catalonia
The right to the legitimate share is not indefinite in time: it prescribes after 10 years. This means that you have a maximum period of 10 years from the date of death of the deceased to claim your reserved portion. After that period, if you have not formally claimed it, you lose the right and you will no longer be able to claim that part of the inheritance.
Ten years may seem a long time, but it is important not to miss the deadline. It is advisable to start the proceedings as soon as possible once the death occurs and the inheritance is known. In addition, if you start a negotiation or lawsuit within those 10 years, your right is protected while the process is being resolved. On the other hand, if you let the decade go by without doing anything, the heir can claim statute of limitations and legally refuse to pay you anything in respect of the legitimate share.
Waiving the right to the legitimate share in Catalonia
As a legitimate beneficiary, you can renounce your legitimate portion if you so wish. The waiver of the legitimate share must be made in an express, clear and simple manner, usually by means of a written declaration (for example, in a public deed before a notary) stating that you voluntarily waive your right.
As long as you do not expressly renounce it, it is presumed that you accept your legitimate portion, even if you do not collect it immediately. Why would someone waive the right to his or her legitimate portion? Some possible reasons are: to favour the principal heir (e.g., a son waiving the legitimate portion so that his widowed mother can keep the entire inheritance), to avoid family conflicts, or even for tax reasons. Whatever the reason, the law allows it.
Now, what happens to that portion of the inheritance if you renounce it? Your share of the legitimate portion is reintegrated to the rest of the inheritance. That is to say, it becomes part of the free estate. It is not automatically transferred to your children or to other legitimate beneficiaries (the reserved portion is a personal right of each legitimate beneficiary). For example, if you are an only child and you renounce the 25% legitimate share of your father's estate, that reserved 25% no longer has an enforced recipient and becomes available to the heirs designated in the will or, failing that, of the intestate heirs.
Please note: The renunciation of the reserved 25% is irrevocable and generally definitive. In addition, if you renounce before death (succession covenants), you must do so in compliance with very strict formal requirements and only in the cases permitted by law. Always consult with an attorney before waiving a right to the reserved share in order to understand all of the consequences.
Conclusion
In summary, the legitimate share (la legítima) in Catalan civil law is an institution that protects the descendants (or parents) of the deceased, guaranteeing them a minimum portion of the inheritance (25% in total) even if the will provides otherwise. As an heir, it is essential that you know your rights: if you are a child or surviving parent, you know that you have this legal provision in your favour. Conversely, if you are making a will, you should keep in mind that you cannot deprive your children or parents of their rightful share except in limited legal circumstances.
We hope this guide has been useful and clear to you. Do you see yourself reflected in any of the cases raised? Are you dealing with an inheritance in Catalonia and didn't know about the legitimate share? The key is to be well informed and act within the legal deadlines. With the right knowledge (and professional advice if necessary), you will be able to claim what is rightfully yours or plan your inheritance respecting the Catalan law. Remember: the legitimate share can be a sensitive issue in families, but it is there to offer fairness and protection to the closest heirs of the deceased. Do not hesitate to assert your rights respectfully and firmly!
The legítima is your legal guarantee that you will not be forgotten about in the inheritance of a loved one - a backup that the Catalan Civil Code makes available to children and parents to ensure a fair minimum distribution.
Hopefully this guide has given you clarity and peace of mind on this topic!
Contact María Serra, family lawyer and mediator in Barcelona:
