When a person dies, their assets must be distributed among the heirs in accordance with the law and, if there is one, a will. In Spain, the law protects certain close relatives through the legitimate portion, a minimum share of the inheritance that must be granted to them, but how is the legitimate portion calculated in an inheritance?
Here we explain what the legitimate portion consists of, how it is calculated and we show you a case study so that you can better understand its application. You are one step away from managing your inheritance correctly!
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What is the legal portion of an inheritance?
The legal portion is a fraction of the inheritance that the testator cannot distribute freely, as the law reserves it for certain relatives called forced heirs. Its objective is to guarantee that these beneficiaries receive a fair share of the estate and to avoid unjustified economic hardship.
In Spanish inheritance law, the inheritance is divided into three main parts:
- Third of strict legal share: This must be distributed equally among the forced heirs.
- Third of improvement: This must also be assigned to forced heirs, but the testator can distribute it unequally among them.
- Third of free disposal: The testator can assign it to whomever they wish, without legal restrictions.
The distribution of the reserved share may vary in some autonomous communities that have their own regional laws, such as Catalonia, Galicia or the Basque Country.
Who are the forced heirs?
The law establishes that only certain relatives have the right to the reserved share. These are:
- Children and descendants: These are the main beneficiaries. If there are several, the legal share is divided equally among them.
- Parents and ascendants: If the deceased leaves no children, the legal share will go to their parents or grandparents.
- Widowed spouse: They do not receive the legal share in property, but they do have the right to the usufruct of a part of the inheritance.
If the deceased left a will, they can only freely distribute the freely disposable portion. In the absence of a will, the inheritance will be distributed as stipulated by law.
How to calculate the reserved share step by step
The calculation of the reserved share is based on determining the deceased’s estate and the correct distribution of their assets according to the law. Let’s look at the key steps to correctly calculate this:
Step 1: Determine the net estate
To calculate the legal share, it is first necessary to know the total value of the deceased’s estate, subtracting their debts and liabilities.
Classic formula for determining the net estate:
Assets and rights – Debts and liabilities = Net estate
The assets and rights to be considered include:
- Real estate
- Vehicles and valuables
- Bank accounts, investments and financial assets
- Acquired rights, such as pensions or insurance
- If there are outstanding debts (mortgages, loans, etc.), they are subtracted from the total to obtain the actual net assets.
Step 2: Division of the inheritance according to the law
Once the net assets have been determined, the inheritance is divided into the three parts mentioned:
- Strict legal: One third of the total, to be distributed compulsorily among the forced heirs.
- Third of improvement: Also reserved for the forced heirs, but with the freedom to assign different proportions.
- Third of free disposal: Can be granted to any person or entity.
Step 3: Distribution according to the type of heirs
Depending on the family situation of the deceased, the legal share is distributed as follows:
- If there are children: The legal share is divided equally among them. If there is a spouse, they receive the usufruct of a part of the inheritance.
- If there are no descendants but there are ascendants: The legal share is reserved for the parents or grandparents.
- If there is only one surviving spouse: they are entitled to the usufruct of half of the inheritance.
Each situation is unique, so it is advisable to seek legal advice to calculate the reserved share of an inheritance fairly.
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Case study: Example of how to calculate the reserved share
To better illustrate the process, let’s look at a case study:
- Total assets: 300,000 euros
- Outstanding debts: 0 euros
- Heirs: Three children
Calculation of inheritance:
- Net estate: 300,000 euros
Division into thirds:
- Strict legal share: 100,000 euros (to be distributed among the children)
- Third for improvement: 100,000 euros (the testator decides how to distribute this among the children)
- Third of free disposal: 100,000 euros (can be assigned to any person)
Distribution of the legal share:
- Each child receives at least 33,333 euros of the legal share.
- The third of improvement can be distributed as determined by the testator.
- The third of free disposal could be allocated to a spouse, an ONG or any other beneficiary.
- If the deceased had not left a will, the inheritance would be distributed according to the law, with the legal share and the reserved share being allocated equally to the children.
The importance of planning your inheritance correctly
Understanding how it works and how the legal share is calculated in an inheritance is key to avoiding conflicts between heirs and ensuring that the deceased’s estate is distributed correctly.
If you need advice on inheritance and wills, you can count on our team of professionals to help you optimize the distribution of assets and ensure that the testator’s wishes are carried out.
Making informed decisions is the best way to ensure family peace of mind and legal compliance. Write to us and we will help you calculate the legal share of an inheritance correctly and in accordance with the law!
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Disclaimer: This article is for informational purposes only and may contain errors or be outdated. It does not constitute legal advice. For an updated initial consultation, contact us. One of our expert attorneys will assist you.
