Restrictions on the freedom to dispose of one’s succession by will (reserved portion).
Last update: 10/1/2012
Maltese law enshrines the right to a reserved portion (that is, a share of the estate, even if the testator has disposed otherwise) to the benefit of the deceased’s spouse and descendants (his/her children or, in the event where the children are already deceased, grandchildren).
The children receive a third of the estate. In the event where the deceased leaves five or more children, their reserved portion amounts to half of the succession.
Along with the descendants of the deceased, the surviving spouse receives a quarter of the succession. In the absence of descendants of the deceased, the surviving spouse receives a third of the succession.
Detailed information
Is there a reserved portion set aside for heirs? What percentage of the estate does this reserved portion represent? What is its legal nature?
§ III. OF THE PROPERTY WHICH MAY BE DISPOSED OF BY WILL
614. (1) Where the testator has no descendants or spouse, he may dispose by universal or singular title of the whole of his estate in favour of any person capable of receiving under a will.
(2) Where the testator has descendants or a spouse, the disposable portion of his estate shall be that which remains after deducting such share as is due to the said descendants or spouse under any of the provisions of articles 615 to 653.
OF THE RESERVED PORTION AND DISHERISON
615. (1) The reserved portion is the right on the estate of the deceased reserved by law in favour of the descendants and the surviving spouse of the deceased.
(2) The said right is a credit of the value of the reserved portion against the estate of the deceased. Interest at the rate established in article 1139 shall accrue to such credit from the date of the opening of succession if the reserved portion is claimed within two years from such date, or from the date of service of a judicial act if the claim is made after the expiration of the said period of two years.
616. (1) The reserved portion due to all children whether conceived or born in wedlock or conceived and born out of wedlock or adopted shall be one-third of the value of the estate if such children are not more than four in number or one-half of such value if they are five or more.
(2) The reserved portion is divided in equal shares among the children who participate in it.
(3) Where there is only one child, he shall receive the whole of the aforesaid third part.
What is the procedure to be followed to assert a right to the reserved portion? What are the time limits?
Unless the heir consents to deliver the reserved portion to the person entitled to it, then the person so entitled is to claim it by filing of a judicial act. (vide 615 above) 10 years from death of testator.
Is it possible to renounce the reserved portion?
The reserved portion is a right. Like any other right, it can be renounced by the person entitled to it. The law, however, is silent on this point.
