Restrictions on the freedom to dispose of one’s succession by will (reserved portion).
Last update: 10/3/2012
The reserved portion, which limits the testator’s right to dispose freely of his/her estate by will, is determined either by the Civil Code or by the laws of the autonomous community in question in the case of Aragon, the Balearic Islands, Catalonia, Navarre, Galicia and the Basque Country.
The beneficiary of the reserved portion is always a forced heir. However, in some autonomous communities, the forced heir has only a compulsory debt claim against the heirs or against the estate.
The deceased’s spouse, descendants and (if there are no descendants) the parents or other ascendants of the deceased are entitled to the reserved portion. According to the Civil Code, the amount of the reserved portion of all the beneficiaries may represent not more than 2/3 of the estate. In the autonomous communities, it may be as high as 4/5 of the inheritance with the specificities due to the origin of the assets.
It is not possible for a forced heir to renounce his/her reserved portion in advance of the deceased’s death. A forced heir may only renounce his/her reserved portion after the deceased’s death. It must be renounced by way of a notarial deed or be authorised by the Courts. The effects are also binding on the descendants of the party renouncing his/her reserved portion.
Detailed information
The reserved portion, which restricts the freedom to dispose of one’s estate in the form of a will, is determined either by the Civil Code or by the laws of the autonomous community in question for Aragon, the Balearic Islands, Catalonia, Navarra, Galicia and the Basque Country.
The heir to the reserved portion is always a forced heir. However, in some autonomous communities, the heir to the reserved portion only has a claim against the heirs or the estate. In ordinary law (except for the autonomous communities with their legislation), the reserved portion is a portion of the property reserved by the law for certain heirs, called forced heirs.
Is there a reserved portion set aside for heirs? What percentage of the estate does this reserved portion represent? What is its legal nature?
The spouse of the deceased, the descendents and (if there is no spouse or descendants) the parents or other ascendants of the deceased. According to the Civil Code, the reserved portion can represent a maximum of two thirds of the succession. In the autonomous communities, it can reach up to four fifths of the succession and with specificities due to the provenance of the property.
The reserved portion to which the children and descendants and, if there is no spouse or descendants, the ascendants, and also the surviving spouse (always) of the deceased (Art. 807 Civil Code) are entitled to, corresponds to:
- 2/3 for the descendants (1/3 of the strict reserved portion, and 1/3 as an additional amount, for free distribution among the descendants (Art. 808 Civil Code).
- 1/2 for the parents and ascendants (only if there are no descendants) or 1/3 when there is also a surviving spouse (Art. 809 Civil Code).
- Usufruct of 1/3 of the succession for the surviving spouse when there are also children (Art. 834 Civil Code),1/2 when there are ascendants (837 Civil Code), and 2/3 if there are no ascendants or descendants.
What is the procedure to be followed to assert a right to the reserved portion? What are the time limits?
The heir to the reserved portion can instigate an action for a supplement to the reserved portion (Art. 815 Civil Code), within a time limit of 15 years if it is a personal action and 30 years for a real action before a court (Art. 1964 Civil Code). The limitation period begins from the moment the heir could have asserted his/her right, i.e. the time of the testator’s death.
Is it possible to renounce the reserved portion?
This is not possible before the testator’s death (Art. 816 Civil Code). Renunciation is only permitted after his/her death. It must be declared in a notarised deed or be accepted by a court and also has effects for the descendants of the person waiving all rights to the succession.
